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[2020] ZAWCHC 10
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Mannatt and Another v de Kock and Others (18799/2018) [2020] ZAWCHC 10 (21 February 2020)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
No.: 18799/2018
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
20 February 2020
Judgment:
21 February 2020
In the matter
between:
MARC
MANNATT
First
Applicant
LOUSE
MANNATT
Second
Applicant
and
PIERRE
DE KOCK
First
Respondent
Executor
of the Estate of E. K. de Kock – 28082/2014 + 025544/2014
and
Trustee of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
DECEASED
ESTATE OF EMMERENTIA KATHARINA DE KOCK
(DE
VILLIERS)
–
28082/2014 +
025544/2014
Second
Respondent
MYTTHYS
DE KOCK
Third
Respondent
Trustee
of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
and
Director of Dumaresq (Pvt) Ltd Reg. No. 1967/009619/07
CHARL
DE KOCK
Fourth Respondent
(Also
known as
RUDOLPHUS DE CHATILLION DE KOCK
)
Trustee
of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
and
Director of Dumaresq (Pvt) Ltd Reg. No. 1967/009619/07
LADY
MCEPA TRUST –
IT3609/2005
Fifth
Respondent
MYTTHYS
MICHAEL DE KOCK TRUST – MT/3871/1987
Sixth
Respondent
JOHANN
FRANCOIS VOS
Seventh Respondent
(Curator
Bonis of Emmerentia Slabbert senior “the Patient”)
and
Trustee of the Lady Mcepa Trust - IT3609/2005
ESTATE
EMMERENTIA SLABBERT SENIOR
Eighth Respondent
CR
171/2017
DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Ninth Respondent
MASTER
OF THE HIGH COURT CAPE TOWN
Tenth Respondent
L.
P. LE ROUX (MAGISTRATE,
HERMANUS)
Eleventh
Respondent
NEIL
SLABBERT
Twelve Respondent
EMMERENTIA
SLABBERT
JUNIOR
Thirteenth
Respondent
EMILY
VAN DER
MERWE
Fourteenth
Respondent
KEITH
MATTHEE
Fifteenth
Respondent
LUCAS
STEYN
Sixteenth
Respondent
COENRAAD
BIERMAN
Seventeenth
Respondent
DUMARESZ
(PTY) LTD
–
Reg. No.
1967/009619/07
Eighteenth
Respondent
LORAINE
DE
KOCK
Nineteenth
Respondent
MATTHYS
DE KOCK
JUNIOR
Twentieth
Respondent
STEPHANUS
DE
KOCK
Twenty
First Respondent
ALDALENE
BRAND (Neé DE KOCK)
Twenty
Second Respondent
TREVOR
EDWARD EYDEN
Twenty Third Respondent
DECEASED
ESTATE OF STANLEY WESLEY EYDEN
13864/2007
Twenty
Fourth Respondent
THE
SHERIFF OF
HERMANUS
Twenty
Fifth Respondent
THE
SHERIFF OF
BELLVILLE
Twenty
Sixth Respondent
JUDGMENT
BINNS-WARD J:
[1] In this matter
the applicants, who are unrepresented and act in person, applied, as
a matter of alleged urgency, for the suspension
of the execution of a
costs order made against them by Rogers J in the principal case on 12
September 2018. The order by
Rogers J attended a 77-page
written judgment by the learned judge in which, save in respect of
one aspect which need not be described,
he dismissed four separate
applications that he had heard together over three days at the end of
August 2018. Except for
certain costs associated with a
postponement application that had been brought by certain of the
respondents in May 2018, the applicants
were ordered to pay the costs
of all of the respondents who had opposed one or more of the four
applications. Costs were
awarded to those respondents on the
scale as between attorney and client, including the costs of two
counsel.
[2] The judgment in
the principal case speaks for itself, but it bears mention that the
punitive costs order made against the applicants
was a mark of what
Rogers J described as ‘the court’s extreme displeasure’
at the manner in which the applicants
had conducted the proceedings.
He remarked that the applicants had ‘abused the court process
as a platform for making
the most vexatious and scandalous
allegations against their family, lawyers, accountants, State bodies
and judiciary’.
The learned judge considered prima facie
that ‘the scurrilous allegations made by the applicants
concerning the judges of
this court, the Hermanus magistrate and the
MHC [Master of the High Court] amount to criminal defamation and
contempt of court’.
He consequently directed the
registrar to forward a copy of the judgment for consideration by the
Director of Public Prosecutions.
[3] The current
application is the third in a succession of applications since August
2019 in which the applicants have sought to
stay or set aside the
execution of the costs order. The first application, also
brought as a matter of urgency, so I was
informed from the bar, was
dismissed by Myburgh AJ in terms of an ex tempore judgment that has
not been available to me.
The second application, essentially
for the same relief, was dismissed by Bozalek J on 5 September
2019. Bozalek J’s
judgment was also given
ex tempore
,
but a signed transcript of it and also a copy of the learned judge’s
judgment, dated 22 October 2019, dismissing a subsequent
application
for leave to appeal from it were put before me as part of the
respondents’ answering papers. The applications
before
Myburgh AJ and Bozalek J, respectively, were both
dismissed with costs on a punitive scale. It is evident
that
Bozalek J considered the application before him to have been
vexatious, and it may reasonably be inferred, I think, that
Myburgh
AJ was similarly minded when he made a punitive costs order.
[4] The previous two
applications for a stay of execution concerned the execution of a
warrant of execution issued by the registrar
on 1 July 2019.
The application for the issue of the warrant was supported by a taxed
bill of costs in the principal
proceedings before Rogers J.
The costs for which the applicants had been held liable in those
proceedings had been taxed
and allocated in the amount of R1 984 759,
24. The sale in execution, on 6 September 2019, of the goods
attached
under that writ failed to realise sufficient proceeds to
redeem the judgment debt. A second warrant directed at
obtaining
payment of the balance of R844 236,70 was issued on 20
December 2019. It was executed on 6 February 2020.
[5] According to the
sheriff’s return (a copy of which was attached to the
applicants’ founding papers as annexure MM1(2)),
the following
property was attached by the Sheriff of Bellville at 17 Koring
Crescent, Onze Molen, Durbanville (which is the applicants
residential address):
1 x City Golf Reg. no. CY[…]6
1 x Silver Nissan Reg no. CY […]4
2 x HP Black printer
1 x Black Epsom Printer
1 x Toshiba Silver laptop + [?] standard box
8 x Camping chairs
1 x Toyota Prado Reg. no. CY […]3
2 x gazebos
[6] The attached
goods were removed from the applicants’ premises by the Sheriff
pursuant to written instructions furnished
to the Sheriff by the
attorneys of the judgment creditors. The instructions were
given by email, dated 6 February 2020, by
Mr D Viljoen of Attorneys
Visagie Vos. It read as follows in material part:
We have been informed by your Deputy Sheriff, Jannie
Bezuidenhout, that he is currently busy executing the Warrant of
Execution
under case number 4023/2018.
We hereby instruct your offices to remove all the goods
under attachment to a place of safekeeping and arrange for a sale and
execution.
We confirm that our security in terms of Rule 45 has
already been provided and is possession of Deputy Bezuidenhout.
You are specifically authorised to arrange whatever
transport is necessary in order to effect the removal.
We also request that you bring this email to the
attention of Deputy Bezuidenhout
as soon as possible
so that
he may proceed with the necessary.
We trust that you find the above in order.
[7] The current
application would appear to have been brought in terms of Rule 45A
(although SCA Rules 6 and 7 and sections 32-34
and 38-39 of the
Constitution are also mentioned in the header to the notice of
motion). The first applicant’s supporting
affidavit,
which contains extensive argumentative matter and much material the
relevance of which is by no means clear, purports
to advance 33
numbered grounds for the relief sought. Their presentation was
not altogether coherent, but in essence the
applicants case, as it
was advanced in argument by the first applicant, appears to be that
the writ should be suspended because
they intend to appeal against
the judgment of Rogers J and because the warrant of execution was
unlawfully executed when the attached
goods, which included the
vehicles they need for personal transport and the printers that they
need to be able to prosecute the
litigation in which they are
involved or intend to embark, were removed from their premises by the
Sheriff.
[8] Unsurprisingly,
having regard to the history, the respondents placed urgency in
issue. And if they had not done so, I
would have raised the
question
mero motu
. Where urgency is an issue, it is
appropriate to determine that matter as a preliminary question before
entering into the
merits of the matter. If a matter is not of
sufficient urgency to be entertained exceptionally in terms of rule
6(12), it
should be struck from the roll without the court making any
determination on the merits of the case; see
Commissioner for
South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner for South African Revenue Service v
Hawker Aviation
Services Partnership and Others
[2006] ZASCA 51 (31 March
2006); 2006 (4) SA 292
(SCA) ;
[2006] 2 All SA 565.
At the
commencement of the hearing before me, which proceeded in the court
designated for the hearing of urgent matters (the
so-called ‘fast
track’), I therefore required the applicants to address me on
why their application should be entertained
as a matter of urgency.
[9] The time for
applying for leave to appeal from the judgment of Rogers J has long
passed and the applicants have been aware of
the fact since at least
October 2018. An application for leave to appeal (or at least
one brought timeously) would in the
ordinary course bring about the
automatic suspension of the impugned judgment and order. If an
application of that nature
had been brought - as the applicants
maintain it has always been their intention to bring - an application
of the nature currently
before me, and also those previously brought
before Myburgh AJ and Bozalek J, would have been quite unnecessary.
The applicants
were in correspondence with the registrar to Rogers J
in September and October 2018 about the date for a hearing of an
application
for leave to appeal to be heard. It is apparent
from that correspondence that the judge fixed the date of 11 October
2018
for the purpose, and also that he had arranged (whilst under no
obligation to have done so) for them to be provided with a
transcript,
[1]
but the first applicant reported that he was in poor health and could
not bring the application on that date. Through his
registrar,
the learned judge thereafter confirmed his earlier advice to the
parties that if they were unable to arrange for an
application for
leave to appeal to be heard before his departure to sit temporarily
in the Supreme Court of Appeal in the last
term of 2018, he would be
unable to hear the matter before December 2018, and that an
application brought then would have to be
accompanied by an
application for condonation for non-compliance by the applicants with
the applicable time limits in terms of
the rules of court. To
date, no such application has been brought. If the admonishment
given by Rogers J were not good
enough to alert the applicants to
their obligations and responsibilities should they wish to pursue an
appeal, the advice to similar
effect given by Bozalek J also appears
to have had no effect.
[10] In the
circumstances of their failure to have done anything effective to
appeal the judgment of Rogers J it should have come
as no surprise to
the applicants that the costs order he made against them is been
carried into execution. The urgency they
seek to attach to the
current application is entirely self-created. Moreover, the
fact that they are now approaching the
court for the third time on
the same question, essentially on the same grounds as they did
previously, and on each occasion as
a matter of alleged urgency, is
in my judgment indicative of a quite blatant degree of abuse of the
court’s process.
The extent to which the applicants have
been willing to injudiciously presume on the Court’s
availability out of the ordinary
course was underscored by their
initially seeking to set the current application down for hearing on
a Saturday (before a different
judge). There is no good reason
in the circumstances of a peculiar mix of self-created urgency and
flagrant abuse of process
for the court to exercise its discretion in
terms of rule 6(12)(a) in their favour.
[11] While I do not
intend in the circumstances to enter into the substantive merits of
the application in a determinative way,
it does nevertheless weigh
with me in refusing to entertain the application as one of urgency
that the applicants’ prospects
of success in the application to
stop or reverse the execution of the costs order made by Rogers J
appear to be nugatory.
The risk that they might suffer an
injustice by not being given the opportunity of obtaining
determinative relief as a matter of
urgency accordingly seems to me
remote in the extreme. The viewpoint that the applicants
profess that they are unable to
proceed with an application for leave
to appeal without a transcript of the proceedings before Rogers J is
misconceived.
The proceedings before Rogers J were on
motion. The evidence was already on paper and the hearing would
have comprised
of oral argument (possibly on written heads of
argument). A transcript was not required; and if the
applicants, for
reasons known only to themselves, nevertheless felt
unable to prosecute the matter further without obtaining one (or an
improved
one), they have, as Bozalek J has previously pointed out,
had more than ample time to have done so. Indeed, their failure
to have proceeded with an application for leave to appeal has by now
been so prolonged that their prospects of even obtaining condonation
for a failure to have done so within the prescribed period must have
become ever poorer with the passage of time.
[12] The applicants’
complaints about the taxation of the bill of costs in their absence
have been dealt with in the judgment
of Bozalek J, and to the
extent that they apparently seek to reiterate them in the current
application, I consider it most
unlikely that, having already been
disposed of, they will be entertained again.
[13] I was also
unpersuaded by the arguments advanced that the prejudicial
consequences of the removal of the attached property
justified the
hearing of the application as one of urgency. In this regard,
the applicants intend to rely on the striking
through of the words
‘
Endorsed for immediate removal
’ above the
signature of the registrar on the warrant of execution. I am
not persuaded that any court that has to determine
the point is
likely to consider the striking through to be of any significance.
The removal of attached property by the sheriff
is a matter regulated
by rule 45, and it is evident therefrom that the property ‘
unless
the execution creditor shall have otherwise directed, … shall
be taken into the custody of the sheriff
’. The manner
in which an execution debtor might avoid the removal of the attached
property is to give a written undertaking
and third party suretyship
as provided in terms of rule 45(5).
[14] I had
considered whether it might be appropriate for any order striking the
matter from the roll for lack of urgency to be
accompanied by an
order directing the applicants to refrain from proceeding with the
matter without first obtaining special leave
to do so. My
thoughts in this regard were triggered by my perception of the
abusive character of the current application
taken in the context of
what other judges have similarly considered to be the character of
the preceding related litigation.
I asked both the first
applicant and the respondents’ counsel to address me in this
regard. In the course of counsel’s
address I was informed
that an application in terms of the Vexatious Proceedings Act 3 of
1956 by certain of the respondents is
in the course of preparation.
It seems from what counsel told me that that application is to be
supported by reference to
a longer or wider history than I am
apprised of. In the circumstances, I shall restrict the order
to be made to the simple
striking off order that is ordinarily made
in cases lacking in sufficient urgency to be heard out of the
ordinary course.
[15] The respondents
sought costs on the scale as between attorney and client, including
the fees of two counsel. In the context
of my finding that the
enlisting of application as a matter of urgency was not only
misguided, but also an abuse of process, I
consider that a punitive
costs order is indeed appropriate.
[16] In the result the following order is made:
1. The application is struck from the roll with costs on the scale as
between attorney and client, including the fees of two counsel.
2. The applicants’ liability for payment of the respondents’
costs of suit shall be joint and several.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
The first applicant complained from the bar before me that the
transcript that was provided was deficient.