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[2018] ZAWCHC 51
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Ntsibantu v Minister of Justice and Correctional Services and Another (156/18) [2018] ZAWCHC 51 (26 April 2018)
[REPORTABLE]
Case no: 156/18
In
the matter between:
NCEDILE
NELSON NTSIBANTU
Applicant
and
THE
MINISTER OF JUSTICE
AND
CORRECTIONAL SERVICES
First
Respondent
THE
SOUTH AFRICAN BOARD
OF
SHERIFFS
Second
Respondent
REASONS
(DELIVERED ON 26 APRIL 2018)
SHER,
J:
1.
This
matter came before me as an urgent application. The central question
which it posed was whether the court was empowered to
make an order
directing the South African Board of Sheriffs (hereinafter the
“
Board”
)
to issue a ‘provisional’ fidelity fund certificate to the
applicant, who was at the time the Sheriff of the High and
Lower
Courts for Cape Town West, pending the outcome of a review of the
Board’s refusal to provide him with a fidelity
fund certificate
for 2018.
2.
In
addition, the applicant sought an interim order interdicting the
hand-over of his functions, records and the monies and goods
held by
him under judicial attachment, to one Van Greunen, who was appointed
in his place as Acting Sheriff for the time being
by the Deputy
Minister of Justice and Correctional Services on 23 December 2017.
3.
As the court had a number of other matters to adjudicate on the day,
after hearing argument I simply made an Order in terms of
which I
dismissed the application with costs and advised the parties that
reasons would be provided in due course, if these were
requested. The
Board has now requested such reasons and has furnished the court with
a transcript of the proceedings of the arguments
that were advanced
on the day, for which the court wishes to extend its appreciation.
The background
4.
The applicant was appointed Sheriff for the Cape Town West area
during 2013. In November 2016 the Board received complaints from
a
number of attorneys in regard to certain questionable transactions on
his trust account.
5.
On 8 December 2016 the Board informed him it had received a qualified
audit report which indicated that he had failed to comply
with s
23(1)(a) of the Sheriffs Act
[1]
in that he had not kept a proper accounting record of monies received
by him in trust and had also not kept proper trust accounts
as
required.
[2]
The Board pointed
out that an inspection of his books of account had confirmed there
were gross irregularities as a result of which
it had made
application for an order that his bank accounts be frozen and that he
provide his bank records.
6.
The Board noted that the applicant had wrongly received trust monies
into his business account instead of his trust account and
had also
made certain ‘special’ investments from his business bank
account, of trust monies which were deposited therein.
These
‘special’ investments were made into bank accounts which
contained no reference to s 22(2)(a) of the Act and
were thus
unprotected. Consequently, the applicant was called upon
[3]
to submit to the auditors his complete financial records for the
period 1 March 2015 to 28 February 2016 so that they could conduct
a
proper audit and submit a full report thereon to the Board.
7.
The Board ended its letter by stating that in the circumstances the
applicant was disqualified in terms of s 33(1)(i) read together
with
s 23(1)(b) of the Act from obtaining a fidelity fund certificate as
he had failed to have the trust and interest-bearing accounts
which
he kept, audited at least once during the preceding year.
Consequently, the Board indicated that it would not be issuing
a
fidelity fund certificate to the applicant for 2017, until such time
as he had rectified his non-compliance. The Board maintained
its
stance subsequent to the receipt of a further audit report which the
applicant obtained on 26 December 2016, which confirmed
that he had
failed to comply with the aforesaid provisions.
8.
Pursuant to this the applicant launched an urgent application
[4]
in which he sought an order reviewing the decision of the board to
refuse to issue him a fidelity fund certificate for 2017 and
an order
that it be directed to issue a ‘provisional’ certificate
pendente
lite
.
An interim order to this effect was granted on 13 January 2017.
9.
On 22 March 2017 the Board gave the applicant notice that it intended
to charge him with various instances of improper conduct
[5]
and it offered him an opportunity to provide a response thereto, if
any, but the applicant declined the invitation. Instead his
attorneys
addressed a letter to the Board in which further particulars to the
proposed charges were requested. A year later, disciplinary
proceedings in respect of these charges are apparently still
underway. Presumably the delay is attributable to the fact that the
charges were contingent upon the review which was pending at the
time.
10.
Whilst awaiting the outcome of the review the applicant made no
attempts to rectify his non-compliance with the Act as per the
Board’s letter of 8 December 2016 and on 26 October 2017 he
again applied for a fidelity fund certificate, this time for
the 2018
year. Given that he was in possession of a ‘provisional’
certificate which had been issued to him pursuant
to the court’s
order in January 2017 he presumably saw no need to do anything in
this regard, as the certificate allowed
him to continue operating as
a sheriff without restriction, as before.
11.
On 18 December 2017 judgment was handed down
[6]
in the review application
[7]
.
The court held that inasmuch as according to his own auditors’
report(s) the applicant had failed to keep separate trust
and
interest-bearing accounts as required
[8]
he could not have complied with the provisions of s 23(1)(b) as he
could not properly have caused ‘separate’ records
of such
accounts (into which monies were deposited or invested and from which
payments were made out), to have been audited within
the preceding
year. It held that in the circumstances the peremptory provisions
[9]
of the Act precluded the Board from issuing a fidelity fund
certificate as the applicant was disqualified at the time when he
applied for it.
12.
In comments which the court made
obiter
it did not endorse the
approach adopted by the judge who had granted the interim order in
January 2017 viz that as long as the
applicant submitted his records
to audit this was sufficient for the purpose of compliance with the
provisions of s 23(1)(b) and
if there were any deficiencies
identified in the subsequent audit report this was something that
could lead to disciplinary action
being taken against the applicant
but would not disqualify him from obtaining a fidelity fund
certificate. The review court was
of the view that the remarks which
were made by the judge who granted the interim order were made in
circumstances where he had
not had the benefit of full argument.
13.
The day after judgment was handed down in the review application the
Board and its attorneys addressed a number of letters to
the
applicant. The first dealt with the issue of formal compliance in
regard to the application which had been lodged for the issue
of a
fidelity fund certificate for 2018. The Board pointed out that the
applicant had not properly filled in the requisite forms
and had
short-paid the interest he had earned on his trust account and it
called upon him to rectify these defects before 22 December
2017. It
further pointed out that the applicant had failed to provide a
complete and proper record of bank statements for his trust
account
for the preceding 12 months, despite being called upon to do so.
14.
In its remaining letters the Board and its attorneys pointed out that
inasmuch as the review had failed, the ‘provisional’
fidelity fund certificate which had been issued to the applicant was
no longer in force. In addition, the Board again expressed
the view
that as the applicant had not yet attended to the issues raised in
its letter of 8 December 2016 he remained in default
of the relevant
provisions of the Act and as such it would not be issuing him with a
fidelity fund certificate for 2018.
15.
On 23 December 2017 the Deputy Minister addressed a letter to the
applicant in which he was informed that as he was no
longer the
holder of a fidelity fund certificate and was therefore by law not
allowed to perform the functions of a sheriff, Mr
Van Greunen (who at
the time was the Sheriff for Goodwood ) had been appointed to act in
his stead until he was able to resume
his duties.
16.
On 27 December the Board addressed a further correspondence to the
applicant in which it again reminded him that he had not
attended to
its outstanding complaints from the previous year. However, in the
event that unbeknown to it he had addressed the
issues raised by it
in the interim he was asked to advise the Board of this, whereupon it
would arrange for a further inspection
of his records in order to
verify his compliance. Importantly, the Board also pointed out that
notwithstanding his non-compliance
he was at liberty to make
application for a special dispensation in terms of s 33(2) for the
issue of an interim fidelity fund
certificate. Finally, it pointed
out that he had still not provided a written response to the proposed
charges which it intended
to prefer against him.
17.
In his response the applicant alleged that he had duly complied with
all outstanding issues and as far as the charges were concerned
he
said that he was still awaiting the further particulars which had
been requested and once these were provided he would be in
a better
position to consider what response, if any, he was to make thereto.
For the sake of completeness it may be pointed out
that in its
answering papers the Board denies that the applicant ever made good
his initial failure to comply with the Act, and
on the basis of the
accepted and trite test in opposed applications the court was bound
to accept this averment and to decide the
matter on the basis that
the applicant had not purged himself and was still in default.
18.
On 28 December the applicant confirmed receipt of the Minister’s
letter and indicated that he was in the process of completing
the
necessary handover forms and would be closing his trust account and
transferring the monies standing to the credit thereof
to the Board’s
account. Subsequently, arrangements were made for a formal handover
to take place on 9 January 2018 but on
the eve thereof the
applicant’s attorneys addressed a letter to the Board demanding
that it agree to staying the process
and to issuing the applicant
with a ‘provisional’ certificate for 2018 failing which
application would again be made
to court for such an order.
An evaluation
i)
The parties’
contentions as to the meaning of s 33(1)(i)
19.
The applicant contended that the provisions of s 33(1)(i), read
literally, only allowed the Board to refuse to issue him
a
fidelity fund certificate in respect of a failure to comply with s
23(1)(b) in the immediately preceding year, and it therefore
could
not rely on his alleged non-compliance as outlined in its letter of 8
December 2016 in order to refuse him a certificate
for 2018, as such
non-compliance related to the February 2016 tax year (ie the period
between 1 March 2015 and 27 February 2016)
and not to the year
preceding 26 October 2017, being the date when he applied for the
2018 certificate. According to the applicant
therefore his initial
disqualification in December 2016 had ‘lapsed’ due to the
effluxion of time and was no longer
operative at the time when he
made application on 26 October 2017 to be issued with a fidelity fund
certificate for 2018.
20.
The logical consequence of the applicant’s interpretation of
the relevant provisions would be that a sheriff who defaults
in his
obligation to keep separate books of account and to have such
accounts audited once annually, could simply delay rectifying
his
non-compliance for more than a year and then apply for the issue of a
fidelity fund certificate for the following year, at
which time he
could say that the Board was not entitled to have regard for his
prior failure to comply with his legislative obligations
when
considering whether or not to issue him with a subsequent
certificate. To my mind this could hardly have been what was intended
by the legislature.
21.
Such an approach would make a mockery of the legislative attempt to
enforce annual compliance with accounting fundamentals by
sheriffs in
order to ensure their continued probity, and thereby protect the
legal system and members of the public who rely on
sheriffs for the
service of process and the enforcement and execution of judgments
granted by the courts. Without an annual check,
by means of a
satisfactory audit, that sheriffs are keeping to the straight and
narrow as far as the assets and monies which they
hold under
attachment on behalf of judgment creditors is concerned the
temptation to enrich themselves and to profiteer from their
activities may, for some, be too much to resist. And without such an
audit of their financial affairs which allows for a proper
and
transparent annual reconciliation of their receipts (and the interest
earned thereon) and the fees and expenses they have debited,
by the
time any theft or misappropriation which may have occurred comes to
light it may be of such magnitude as to have a major
impact on the
Sheriff’s Fidelity Fund, which is required by law
[10]
to make good any losses suffered by any person in respect of a
failure on the part of a sheriff to pay out or to deliver any money
or property held under attachment, or the proceeds of the sale of any
such property.
22.
On the other hand, the respondents adopted the attitude that the
operative dates for the purposes of determining the preceding
year
period referred to in the disqualifying provision
[11]
were 8 December 2016 when the Board initially notified the applicant
that he had failed to comply with ss 23(1)(a) and (b) of the
Act and
26 December 2016, when his auditors confirmed earlier instances of
such non-compliance. In my view, such an interpretation
of s 33(1(i)
might equally be an artificial and strained one. It could lead to a
situation where a sheriff might be disqualified
unfairly, at a time
when he was in fact compliant, for an accounting breach which
occurred more than a year before. This too would
hardly accord with
the legislature’s intention.
23.
However, it was not necessary to pronounce definitively on these
differing interpretations of the legislative provisions in
question.
This was because in my view the applicant failed substantially to
make out a case for the relief he sought.
ii)
Ad
the interdict
24.
It was trite that in order to obtain an interim interdict the
applicant needed to show that he had at least a
prima facie
right which was established, albeit open to some doubt, a
well-grounded apprehension of irreparable harm in the event that the
interdict was not granted to him, and that the balance of convenience
was in his favour and there was no other alternative, satisfactory
remedy open to him. In my view the applicant failed in respect of
each of these requirements.
25.
It was accepted by the applicant that the ‘provisional’
certificate which had been granted to him by the Board (in
compliance
with the court order to this effect in January 2017), was only in
force pending the outcome of the review application
which he had
launched. It follows that once that application failed upon the
dismissal thereof on 18 December 2017, the applicant
was barred by
virtue of the provisions of s 30(1)(a) of the Act from performing any
functions as a sheriff.
26.
The decision of the review court was not taken on appeal, and on 23
December 2017 the applicant was informed that as he was
no longer the
holder of a fidelity fund certificate and was therefore by law not
allowed to perform the functions of a sheriff
the Minister had
decided to appoint a temporary substitute to act in his stead. That
appointment was made in terms of s 5(1)(a)(i)
of the Act, which
provides that when a sheriff is unable to perform his functions the
Minister may appoint a suitable person to
act in his place, until he
is able to resume his functions. It was not suggested by the
applicant that the Minister’s appointment
was defective in any
way, and it was common cause that it was only the
Board’s
decision
to refuse to grant the applicant a fidelity fund certificate for 2018
which the applicant intended to review, and not the
appointment of
his substitute. In the circumstances the applicant’s counsel
conceded during argument that the applicant had
no right, even on a
prima
facie
basis, to interdict the hand-over of his functions and the assets and
monies under his control, to his temporary successor. In
the absence
of proof of such a right the applicant could thus obviously not
succeed in regard to the remaining requirements for
an interdict.
27.
But insofar as may be necessary I may state that as far as the
remaining requirements for the grant of an interim interdict
are
concerned there was similarly no case made out. That then as
far as the relief which was sought in paragraph 2 of the
notice of
motion.
iii)
Ad the order
directing the issue of a ‘provisional’ fidelity fund
certificate
28.
On what basis in law the court granted the applicant an order in
January 2017 whereby it directed the Board to issue him with
a
‘provisional’ fidelity fund certificate for 2017, is not
clear, and it was conceded by counsel that there was no
legislative
provision in the Act which expressly empowered the court to do so.
The best that counsel could do was to submit that
such an order could
be made in terms of the court’s ‘inherent’
jurisdiction. But of course, as is trite, the
court’s power in
this regard is limited to the regulation of its own process.
[12]
It does not extend to a general power at common law to make orders on
matters which are regulated by statute and which fall within
the
domain of an administrative entity such as the Board, which is a
statutorily established regulatory body
[13]
which has as amongst its objects the maintenance of the esteem of,
and the improvement of the functions performed by, sheriffs.
It
is the Board upon whom the legislature has conferred
[14]
the power to issue fidelity fund certificates, and not the courts,
and the courts should respect this lest they make themselves
guilty
of over-reaching.
29.
If one considers the relevant provisions which confer upon the Board
the power to issue such certificates it is apparent that
they are not
there to be granted simply for the asking and the Board is required
to consider a number of issues before doing so.
In this regard it has
to be satisfied upon due consideration of an application for the
issue of a fidelity fund certificate (the
Act does not appear to make
any distinction between an initial application for the issue of a
fidelity fund certificate and a subsequent
application for the
renewal thereof), that the sheriff is a ‘suitable’ person
to hold such a certificate.
[15]
To be so satisfied it is required to satisfy itself that the sheriff
is not subject to any of a number of disqualifying factors
which are
set out in s 33. In this regard the section provides that the
applicant must comply with a range of requirements pertaining
to
citizenship and permanent residence,
[16]
age,
[17]
solvency,
[18]
mental status
[19]
qualifications and experience
[20]
and to having a ‘clean record’.
[21]
In addition, the Regulations relating to Sheriffs
[22]
provide that no person shall be appointed as a sheriff unless he or
she is a “fit and proper person“
[23]
who is competent to conduct the business of a sheriff and to this end
has at least an appropriate tertiary qualification,
[24]
an “understanding” of civil law
[25]
and knowledge and understanding of ‘relevant aspects’ of
the Constitution as well as a range of other statutory provisions
and
rules of court.
[26]
When
making application for the position the applicant is required
[27]
to include copies of his/her educational qualifications, certificates
of service and testimonials and contact details of two referees,
as
well as a statement of assets and liabilities.
[28]
In addition, the Board may not issue a fidelity fund certificate to a
sheriff if he or she has not obtained professional indemnity
insurance which is sufficient to cover any liability which they might
incur in the course of discharging their functions.
[29]
30.
The onerous disclosures which an applicant must make in terms of the
Regulations
[30]
when first
applying for the position of sheriff, particularly those in regard to
whether he/she has ever been dismissed for improper
conduct involving
a breach of trust, has ever been convicted of an offence involving
dishonesty,
[31]
and has ever
been declared insolvent or had a fidelity fund certificate cancelled,
must be repeated annually each time when the
applicant applies for
the renewal of his/her fidelity fund certificate.
[32]
31.
Furthermore, in order to obtain the renewal of a fidelity fund
certificate the sheriff is required to provide an audit
report from a
qualified auditor, for each financial year.
[33]
In terms of the Regulations
[34]
the auditor must be independent and must state in his/her report
[35]
that the audit was
conducted
in accordance with generally accepted auditing standards and in such
a manner as to obtain a reasonable assurance that
the sheriff has
duly complied with ss 22 and 23(1)(a) of the Act.
32.
The report must pertinently state
[36]
that the audit included an evaluation of the effectiveness of the
sheriff’s accounting controls and an examination, on a
test
basis, of the evidence in support of the amounts and disclosures
included in the accounting records relating to trust monies,
as well
as an evaluation of the appropriateness of the overall presentation
of accounting records relating to such monies. It must
confirm
[37]
that the auditor tested the system employed to transfer amounts
(including interest earned) from the sheriff’s trust account
to
his business account and that whenever any such transfer was made the
balance remaining to the credit of the trust account and
any savings
or other interest-bearing account, together with any trust monies
held as cash on hand, was not less than the “trust
balances”(sic). In addition, the report must confirm that the
total amount standing to the credit of the trust account and
any
savings or other interest-bearing accounts kept by the sheriff,
together with any trust monies which according to the sheriff’s
accounting records were held as cash on hand, was sufficient to cover
the trust balance as at year end.
[38]
33.
Finally, the report must state
[39]
whether in light of the audit findings the auditor is of the opinion
that the sheriff duly complied with the provisions of ss 22
and
23(1)(a) of the Act during the year under review.
34.
In the circumstances, it is clear that what is required in order to
obtain the renewal of a fidelity fund certificate is in
fact an
unqualified audit opinion and not just a report that the sheriff duly
submitted his records, deficient as they might be,
to audit.
35.
In the result, as the review court also did (albeit that in its case
this was
obiter
), I respectfully disagree with the comments
made by the judge who granted the interim order in January 2017
whereby the Board
was directed to issue the applicant with a
‘provisional’ fidelity fund certificate. In this regard,
as has been previously
pointed out the court expressed the view that
s 23(1)(b) of the Act did not require a sheriff to produce an
unqualified auditor’s
report but merely to submit his records
to audit, and the subsequent furnishing of an audit report in terms
of s 23(2)
would serve as confirmation that the sheriff’s
obligation in terms of s 22(1)(b) had been discharged and if there
were any
deficiencies in the report this was a matter which could
give rise to disciplinary proceedings, but could not serve to bar the
sheriff from obtaining a renewal of his/her fidelity fund
certificate.
36.
It is so that on a literal reading of the bland provisions of s ss
23(1)(a) and (b) only it would seem as if the sheriff would
discharge
his statutory obligations simply by causing the records of his trust
and interest-bearing accounts to be audited once
annually. But these
provisions must not be considered in isolation and are to be read
contextually with the contents of subsection
(2) and Regulation 9 and
Form 7 which as was explained above
[40]
give
flesh and effect to the section by requiring the auditors to furnish
the Board with a report of their findings in which they
certify that
they have tested the sheriff’s accounting system in a number of
respects, and that it adequately provided for
the maintenance at all
times of a credit balance on the sheriff’s trust account. In
the circumstances, where an auditor issues
a report which is
qualified (in regard to the specific issues he is required to report
on in terms of the Regulation and Form 7
and in respect of which
compliance with the prescribed requirements needed to be confirmed),
the sheriff will not have complied
with the provisions of s 23(1)(b)
of the Act and will not be entitled to be issued with a fidelity fund
certificate. On this ground
alone therefore, given that the applicant
was according to the Board still in default of compliance as at
December 2017 this court
would not have been entitled to direct the
Board to issue the applicant with a fidelity fund certificate for
2018.
37.
The immediate further question which arose from this was whether the
court was nonetheless entitled to direct the Board to issue
a
‘provisional’ certificate, pending the outcome of the
pending review or some other process
[41]
.
In my view, this was also not something which the court was at
liberty to do.
38.
In the first place, as I have previously pointed out, in terms of the
Act it is the Board which is empowered to issue fidelity
fund
certificates, and not the courts, and in considering whether or not
to grant such a certificate the Board is required to take
into
account a number of factors, many of which will only become known to
it after it has processed the information which is set
out in the
contents of the relevant Forms
[42]
and
supporting documentation which is to be submitted by the applicant,
including the auditor’s report, and the Board has
made such
further enquiries or called for such further documentation eg
financial records, as may be necessary. These are ordinarily
not
matters which a court will be able to attend to, as it is confined to
what is contained in the affidavits which are before
it.
39.
In addition, it is further clear from the general scheme of the Act
that it lies within the discretion
[43]
of the
Board to determine whether an applicant who seeks the issue of a
fidelity fund certificate or the renewal thereof, is a ‘suitable’
candidate therefor, in that he/she possesses the necessary competence
and formal professional and educational qualifications and
has
complied with the necessary accounting and other requirements of
probity and is thus a ‘fit and proper’ person
to whom
such a certificate should be granted. The issue of such a certificate
constitutes, in effect, a certification by the Board
to the public at
large that the holder thereof is competent and may be trusted and
that in the event that he/she were to make themselves
guilty of some
misconduct, misappropriation or culpable neglect which results in
loss, either their personal professional indemnity
insurance or the
Sheriff’s Fidelity Fund will make good such loss. As such, a
fidelity fund certificate is not something
which is to be granted
lightly, or in circumstances where there is a question mark as to the
honesty or integrity of a sheriff.
40.
In the circumstances, save in certain limited instances such as where
for example it is common cause that an applicant for a
fidelity fund
certificate has duly complied with all the necessary formal,
professional, educational, accounting and other requirements
of
probity referred to, and was clearly considered by the Board to be a
fit and suitable person to hold such a certificate and
its refusal to
issue or renew such a certificate was motivated simply by
considerations of malice or bad faith, or dereliction
of duty, and
not by any legitimate non-compliance or default on the part of the
applicant, a court should not be making orders
directing the Board to
issue the applicant with such a certificate
[44]
even
if this were only to be a so-called ‘provisional certificate,
as it would be treading into terrain which lies within
the Board’s
province, where it is required to make a value-based decision after
weighing up a number of considerations.
41.
The Act provides
[45]
that a
fidelity fund certificate which is issued to a sheriff
[46]
shall
be valid until 31 December of the year in respect of which it has
been issued. The effect of this provision is that even were
the court
to be minded and at liberty to grant an Order directing the Board to
issue such a certificate, this could in any event
not be an Order in
the terms sought in the notice of motion ie that the certificate
should be issued (and be in effect) pending
the outcome of a review
which was to be launched, which would ordinarily take more than a
year to be finally determined. The best
that the court could do for
an applicant would be to direct that the Board issue a certificate
which would be in effect for the
remainder of the calendar year in
which the application is brought ie until 31 December. On this ground
too, the relief which was
sought in the notice of motion could never
have been granted.
42.
There is one further important legislative provision which lends
force to the conclusion that a court is not able to make an
Order
directing the Board to issue a ‘provisional’
certificate.
[47]
In
this regard s 33(2) provides that notwithstanding that a sheriff may
be disqualified in that he does not satisfy any one or more
of the
various requirements set out in s 33(1), the Board may nonetheless
issue him with a fidelity fund certificate on such conditions
as it
may determine with the concurrence of the Minister, after having due
regard for the relevant considerations, if it is satisfied
that it is
in the “interests of fairness” to the applicant to do so.
Once again, this involves the Board in a value-weighted
exercise,
which it needs to undertake before determining whether or not to
grant a sheriff an indulgence, as a special dispensation.
As such,
the court should respect the Board’s functions and powers in
this regard, by leaving it up to the Board to decide
on whether or
not to grant an applicant such assistance, on proper application made
to it by the applicant. By making an Order
directing the Board to
issue a non-compliant sheriff with a renewal certificate the court
may effectively be usurping the Board’s
powers and emasculating
it from carrying out its legislative functions, and it may perversely
have the opposite effect of what
the Act is aimed at achieving viz
adherence by sheriffs to a system of control and regulation by the
Board. This was vividly illustrated
by the facts in this matter where
by making an Order that the Board should issue the applicant with a
‘provisional’
fidelity fund certificate the court
effectively gave the applicant a ‘free pass’ ie a licence
to continue operating
as a sheriff for the rest of the year, without
the need to regularise his non-compliance.
43.
In the circumstances, and for the reasons set out in the preceding
paragraphs I was of the view that the applicant had also
not made out
a case for the relief which he sought in paragraph 1 of the notice of
motion. In my view, instead of seeking an Order
directing the Board
to issue him with a ‘provisional’ fidelity fund
certificate the proper course of action for the
applicant to have
followed was to have made application to the Board in terms of s
33(2) for the issue of an interim or ‘provisional’
certificate, pending the regularisation of his affairs, on such terms
and conditions as the Board and the Minister might deem to
be
appropriate.
In
the result, the application was dismissed, with costs.
SHER
J
Attendances
:
Heard: 22 January 2018
Reasons requested: 28
February 2018
Delivery of transcript of
proceedings: 22 March 2018
Appearances
:
Applicant: Adv A Njeza
Instructed by: Tshepo
Sikopela Attorneys, Cape Town
Respondents: Adv I Jamie
SC
Instructed by: Herold Gie
Attorneys, Cape Town
[1]
Act 90 of
1986.
[2]
S 22.
[3]
In terms of
s 23 (3).
[4]
Under case
number 24933/16.
[5]
In terms of
s 43 of the Act.
[6]
Per Le
Grange J, Bozalek J concurring.
[7]
Reported
sub nom
Ntsibantu v SA Board of
Sheriffs
[2017] ZAWCHC
150.
[8]
In terms of
s 23 (1)(a).
[9]
S 33
(1)(i).
[10]
In terms of s 35(a).
[11]
S 33(1)(i).
[12]
In terms of
s 173 of the Constitution. In
Universal
City Studios Inc & Ors v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986
(2) SA 734
(A) at 754G Corbett JA (as he then was) held that there
was ‘no doubt that the Supreme Court possesses an inherent
reservoir
of power to regulate its procedures in the interest of the
proper administration of justice’.
[13]
In terms of s 8 of the Act.
[14]
In terms of s 32 rtw s 33 of the Act.
[15]
S 32(1).
[16]
S 33(1(a).
[17]
He/she
must be older than 21 years- s 33(1)(b).
[18]
He/she may not be an unrehabilitated insolvent- s33(1)(c.
[19]
He/she cannot be of unsound mind-s 33(1)(d).
[20]
He/she
is required to have undergone the prescribed level of training and
to have the prescribed level of experience-ss
33(1)(e) -(f).
[21]
Aside from
not being subject to disqualification in terms of s 33(1)(i) on the
basis that he/she failed to comply with the accounting
requirements
set out in s 23(1)(b) in the preceding year, h
e/she
may not have been previously dismissed from a position of trust by
reason of improper conduct (s33(1)(g)), or have been
convicted of
any offence involving dishonesty or any other offence for which
he/she has been sentenced to imprisonment without
the option of a
fine (s 33(1)(h)), must not have been prohibited by a court from
dealing with his/her trust account or any other
interest-bearing
account into which he/she has deposited trust monies which are not
immediately required (s33(1)(j)), and must
not have been the
previous holder of a fidelity fund certificate which has been
cancelled (s 33(1)(k)).
[22]
Promulgated by way of GN R 411 in
GG
12307 on 12 March 1990, as
amended.
[23]
Reg 2
bis
(b).
[24]
Reg 2
bis
(d)(i).
In
terms of
S 33(1) (a)
the sheriff
is required to have undergone the prescribed level of training and
to have the prescribed level of experience.
[25]
Reg 2
bis
(d)(ii).
[26]
Reg 2
bis
(d)(iii).
[27]
Per Form 1 of the Regulations.
[28]
Per Form 2.
[29]
S 33(1)(m).
[30]
As per Form 1.
[31]
Or any other offence for which he was sentenced to imprisonment
without the option of a fine.
[32]
As per Form 7.
[33]
Per s
23(1)(b) and (2) rtw Regulation 9 and Form 7.
[34]
Reg 9.
[35]
As per
Form 7.
[36]
Id.
[37]
Id.
[38]
And at the end of another randomly chosen month during that year.
[39]
Id
.
[40]
I
n
paragraphs 30-31.
[41]
Such as consideration by the Board of whether to issue a ‘final’
certificate.
[42]
Forms 1 and 7.
[43]
Contrast
this
with the position
in terms of s 42(3(a) of the Attorneys Act 1979, which provides that
if the secretary of the law society concerned
is satisfied that an
applicant attorney has discharged all his/her liabilities in respect
of his contributions to the society
and has complied with any other
lawful requirements, the secretary
shall
forthwith
(my
emphasis) issue him or her with a fidelity fund certificate. In
Law
Society of the Northern Province v Le Roux
[2015]
ZASCA at para [16] the Supreme Court of Appeal held that the
provision circumscribes the secretary’s role to
merely
satisfying him- or herself that the application complies with the
relevant requirements and whilst the exercise ‘involves
some
judgment’ (sic) the secretary nevertheless enjoys no
discretion to go beyond simply granting the application
if it
meets the requirements, or declining it if it does not.
[44]
In the only
reported decision which I could find on the point viz
Bruwer
v SA Board of Sheriffs
[2010] ZAWCHC Blignault J held at para [30], without providing any
reasons, that a court would not ‘ordinarily’ grant
an
Order that the Board be directed to issue a fidelity fund
certificate. It does not appear from the judgment that the question
of whether or not the court had the power to grant an order
directing the issue of a ‘provisional’ certificate was
argued, and it was merely assumed by all concerned that it did.
In that matter the Board was directed to issue a certificate
to a
sheriff who had made late payment of his fidelity fund contributions
and who had paid an admission of guilt fine for alleged
improper
conduct. The motivation for granting the Order appears to be that
the sheriff was qualified and had complied with the
formal
requirements necessary to obtain a renewal of his certificate, and
the process to which he had been subjected in order
to get him to
pay the fine had been irregular in that he had not been properly
charged and had not been given written notice
of a disciplinary
hearing. In addition the court was motivated by the fact the
certificate which was to be issued would only
be in effect for about
a month, until the end of the year.
[45]
In
s
32(2).
[46]
In the case of an Acting Sheriff the Board may issue a certificate
which is valid for a period of not less than 1 month and not
more
than 1 year- s 32(3).
[47]
S
ave
in the limited circumstances referred to in paragraph 39.