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[2011] ZAGPPHC 49
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Investec Private Bank v Pieterse and Another (46045/2009) [2011] ZAGPPHC 49 (1 April 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 46045/2009
DATE:01/04/2011
In
the matter between:
INVESTEC
PRIVATE BANK
(a
division of INVESTEC BANK
LIMITED)
....................................................................
Applicant
and
JOHANNES
JACOB
PIETERSE
...........................................................................
1st
Respondent
THE
SHERIFF FOR THE DISTRICT OF
PRETORIA,
SOUTH
EAST
....................................................................................
2nd
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
On 29 July 2009 the applicant had brought an urgent application
against the first respondent seeking certain relief set out
below.
The court granted an interim order coupled with a rule nisi
returnable on 1 September 2009. The applicant is seeking confirmation
of the ruie and the first respondent is opposing the relief sought.
The rule nisi reads as follows:
"1.
THAT the first respondent shall forthwith disclose to the second
respondent alternatively his designated representative,
further
alternatively the Sheriff for the district of Tzaneen the whereabouts
of the movable property as described in annexure
"A17" to
the applicant's founding affidavit.
2.
THAT the second respondent alternatively his designated
representative, further alternatively the Sheriff for the district of
Tzaneen, is authorised and directed to forthwith take possession of
the movable property described above in paragraph 2 where ever
it may
be found.
3.
THAT the orders in paragraphs 2 and 3 alternatively 4 above are to
operate as an interim order with immediate effect subject
to the
following:
a)
that a rule nisi be issued, calling upon the first respondent to
show cause if any, to the above Court on 1 September 2009 at
10h00 or
so soon thereafter as the matter be heard, why the order in
paragraphs 2, 3, 4 and 5 should not be confirmed;
b)
that this order together with the founding papers be served on the
respondent personally forthwith;
c)
the first respondent is to deliver his answering affidavit, if any
within ten (10) Court days from the date of service hereof
and the
applicant is to file its replying affidavit, if any, within ten (10)
Court days of the filing of the first respondent's
answering
affidavit;
4.
THAT in the event that the first respondent not comply with
paragraphs 2, 3 and 4 above, that the applicant be permitted to
approach the above Court on the same papers for an order of contempt
of Court."
[2]
It appears that the first respondent is a former employee of the
applicant. During his employment, the first respondent was
granted
certain credit facilities in the form of an Investec private Bank
Card (the card). The card was to be used by the first
respondent
subject to certain terms and conditions, inter alia, that on his
termination of employment with the applicant he would
settle any
outstanding amounts on the card due to the applicant. The first
respondent chose as his domiciiium citandi et executandi
address 32
South Street, Centurion Hills. This address was later changed to 101
Ndumu Close, meadow Glen Estate, Moreleta, Pretoria.
[3]
When the first respondent's employment was terminated he did not
settle the outstanding amounts due, a total amount of R 87
449.12, to
the applicant. As a result the applicant instituted legal proceedings
for the recovery of the amounts in the Pretoria
Magistrates Court
despite demand being made for him to pay. On 6 May 2009 the
Magistrates Court granted a default judgment against
the first
respondent. On 8 May 2009 the Court issued a warrant of execution
against the property of the first respondent.
[4]
In his return of service the Sheriff indicates that on 14 May 2009 he
had gone to 101 Ndumu Close, meadow Glen Estate, Moreleta,
Pretoria
where he found a certain Miss Badenhorst who identified herself as
the first respondent's girlfriend. After identifying
himself and
serving the execution papers to Miss Badenhorst, the Sheriff had
taken the inventory and valuation of the movables
in the house to the
value of the judgment debt.
[5]
Miss Badenhorst appears to have subsequently claimed that the movable
property inventoried by the Sheriff on 14 May 2009 was
her property.
The Sheriff issued an interpleader summons calling upon Miss
Badenhorst to prove her claim of ownership of the attached
movables.
However this summons could not be served on Miss Badenhorst as she
and the first respondent had vacated the premises
at the domicilium
address. The attached movables were also removed. The first
respondent was eventually traced at 10 Aqua Vista
Flats, Aqua Street,
Tzaneen. The removal of the movables from Pretoria to Tzaneen led to
the launching of the urgent application
and the interim relief
granted. On 30 July 2009 the first respondent was served with the
order of 29 July 2009 and the original
attached movables were removed
and stored by the Sheriff in Tzaneen, pending the finalisation of
this matter.
[6]
On 30 March 2010, being the extended return date of the rule, the
matter was further postponed and the rule extended to 10 May
2010. It
appears that the matter was postponed as the first respondent has, in
his answering affidavit, alleged that the applicant
should set off
the amount claimed against monies the first respondent claims were
due to him on his termination and were not paid
to him. The court
further ordered, inter alia, that the applicant should file an
affidavit setting out the amounts paid to the
first respondent in
respect of monies due to him as at the date his employment was
terminated.
[7]
At the hearing of this matter, and as it appears from the first
respondent's heads of argument, it appears that the issues raised
by
the parties in their papers in support and against the confirmation
of the rule has become moot. There has been compliance with
the
interim order in that the attached movables which were removed to
Tzaneen are now in the possession and under the control of
the
Sheriff and the rule is now susceptible to be discharged.
[8]
What remains to be determined is the issue of costs. The return date
of the rule was initially 1 September 2010. On that date
the matter
was postponed to 30 March 2010 and the rule extended. The reason for
the postponement was for the applicant to prepare
and file an
affidavit setting out monies which were due to the first respondent
when terminated and which were paid to him as a
result. The matter
was again postponed to 10 May 2010 and the rule extended. On 10 May
2010 and after the affidavit as directed
by the court on 30 March was
filed, it appears that the first respondent had disputed the amounts
set out in the affidavit as his
pension payout. As a result there was
a further postponement to the opposed roll and extension of the rule
to 16 August 2010.
[9]
It is the submission of the applicant that it is entitled to the
costs for launching the urgent application and for the various
postponements. It is contended on behalf of the applicant that since
the moveable property which was attached by the Sheriff was
the only
assets the first respondent had in order to satisfy the judgment
granted in favour of the applicant on 6 May 2009, it
had no
alternative but to institute an urgent application when it discovered
that the first respondent had vacated the domicilium
address with the
attached assets and without leaving a forwarding address even though
the first respondent was aware that the process
of executing the
warrant of execution had already started. The Sherriff had already
attached the assets and the assets, for all
intents and purposes,
were at the time of their removal vested on the Sheriff. The assets
could not be removed without the consent
of the Sheriff. It was
further contended that the subsequent postponements were as a result
of the first respondent trying to include
the issue of the pension
payout which was not relevant to the issue at hand. If the first
respondent felt that he was short-changed,
he could have used other
remedies available to him to contest the payout. The applicant is
asking for costs on an attorney and
client scale.
[10]
It was submitted on behalf of the first respondent that there was no
need for the matter to be in court on the day this matter
was heard
as the interim order of 29 July 2010 had been complied with. The
parties should have reached a settlement as to how the
issue on costs
should be resolved rather than coming to court.
[11]
It is trite that costs follow the suit. The party who is
substantially successful is entitled to be awarded the costs for the
urgent application and the postponements which had occurred. It is
abundantly clear that the applicant, in view of the conduct
of the
first respondent had no option but to bring the urgent application in
order to safeguard its interests. As argued
by counsel for the
applicant, the only assets of the first respondent available to the
applicant in order to satisfy the judgment
order it had obtained
against the first respondent, were the assets found by the Sheriff at
the domicilium address on 8 May 2009
and which were inventoried and
attached as per a court order. The first respondent removed the
assets well knowing that they were
attached by the Sheriff.
Furthermore, the relief sought by the applicant in the urgent
application has been satisfied in that the
assets are now in the
possession and control of the Sheriff, where they should have
remained but for the actions of the first respondent.
Furthermore,
the first respondent, by bringing up the question of his pension
payment has contributed to the escalation of the
costs in these
proceedings since the satisfaction of the judgment order had nothing
to do with his pension payout. As correctly
pointed out by counsel
for the applicant, the applicant is not responsible for the pension
payouts. The pension fund contracted
to the applicant is.
[12]
I am, therefore of the view that the applicant has been substantially
successful in these proceedings and is entitled to the
costs,
including the costs occasioned by the postponements on a client and
attorney basis.
[13]
Accordingly the following order is made:
1.
The rule nisi issued on 29 July 2009 is hereby discharged;
2.
The first respondent is directed to pay the costs of the urgent
application and the costs occasioned by the postponements on
1
September 2009, 30 March 2010 and 10 May 2010 on an attorney and
client scale.
NP
Mgqibisa-Thusi
Judge
of the North Gauteng High Court