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[2021] ZAECPEHC 16
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Nxumalo v Curoscore (Pty) Ltd (445/2021) [2021] ZAECPEHC 16 (16 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No.: 445/2021
Date
heard: 4 March 2021
Date
delivered: 16 March 2021
In the
matter between:
NQOBILE
MOFFAT NXUMALO
Applicant
and
CUROSCORE (PTY) LTD
Respondent
JUDGMENT
ZIETSMAN
AJ:
[1]
On 2 February 2021 an order was granted by the
Magistrate’s Court, Port Elizabeth for the attachment of
property in terms
of section 32 of the Magistrates’ Court Act
32 of 1994 (“the Act”). In terms of the Order
Respondent was
the applicant, and Applicant was the respondent.
[2]
The Order was also endorsed in terms of rule 41
(7) of the Magistrates’ Court Rules (“the Rules”).
Applicant takes
issue with this endorsement.
[3]
Subsequently, Applicant launched an application,
on an urgent basis, in terms whereof he seeks orders:
[1]
“1. Declaring the
application to be a matter of urgency and dispensing insofar as
necessary
in terms of Rule 6(12) with the usual forms and service
provided for in the Uniform Rules of Court.
2. Declaring the removal of the
Applicant’s movable property listed in the Notice of
Attachment
in Execution dated 3 February 2021, by the Sheriff of the Court South
on the instruction of the Respondent, be declared
unlawful.
3. The Sheriff of the Court
South, at no costs at all to the Applicant, is to immediately return
all items removed as listed in the Notice of Attachment in Execution
dated 3 February 2021.
4. The Sheriff of the Court
South, on receipt of this order, is to immediately release to the
Applicant the Mercedes Benz motor vehicle with registration HNX 774
EC.
5. The Sheriff of the Court South
is to complete the return of all items as stated above no
later than
3pm, on the day of receipt of this order.
6. That the instructions by the
Respondent to the Nelson Mandela Bay Municipality to disconnect
the
electricity at the Applicant’s residence, being Number 7 Summit
Place, Summerstrand, Port Elizabeth, is set aside and
the Nelson
Mandela Bay Municipality is to immediately ensure restoration of
electricity at the Applicant’s residence forthwith.
7. That such restoration of
electricity, as state above, should be completed before close of
business of the day of receipt of this order.
8. Further and alternative
relief.”
[4]
What is evident from the notice of motion is that
Applicant is not seeking relief that the Order or the endorsement in
terms of
rule 41(7) be set aside.
[5]
Applicant seeks an order that the removal of his
movable property “listed in the Notice of Attachment in
Execution dated 3
February 2021, by the Sheriff of the Court South on
the instruction of the Respondent, be declared unlawful”.
[2]
I pause to mention that this notice of attachment was not annexed to
the papers.
[6]
With regard to the remainder of the relief,
[3]
Applicant seeks orders against both the sheriff and the Nelson
Mandela Bay Municipality (“the Municipality”).
[7]
At the outset it is necessary to deal with the
relief Applicant seeks against the sheriff and the Municipality.
Non-joinder
[8]
The issue of non-joinder, of the sheriff and the
Municipality, was pertinently raised with Applicant at the
commencement of the
hearing of the application. Applicant confirmed
that he abandons the relief that he seeks against the Municipality.
[9]
With regard to the relief against the sheriff,
Applicant referred to the “amended relief” that he now
seeks as per his
replying affidavit, which, according to him, falls
under “further and alternative relief”. Applicant sought
to amend
the relief he seeks against the sheriff, without amending
his notice of motion, and by merely rephrasing the relief to read
“Respondent
is to instruct the sheriff”, or words to that
effect. This is simply unacceptable. It matters not which way
you play
around with the words, the effect of what Applicant seeks is
essentially an order against parties that are not before court.
[10]
Our courts have over more
than half a century ago confirmed, in
Amalgamated
Engineering Union v Minister of Labour
,
[4]
that:
“…the Court has consistently
refrained from dealing with issues in which a third party may have a
direct and substantial
interest without either having that party
joined in the suit or, if the circumstances of the case admit of such
a course, taking
other adequate steps to ensure that its judgment
will not prejudicially affect that party’s interests.”
[11]
Accordingly, the non-joinder of the sheriff is
fatal to the relief sought by Applicant in prayers 2 to 7 of his
notice of motion.
[12]
What then remains is prayer 1 of Applicant’s
notice of motion, in terms whereof he seeks an order that the removal
of his
movable property be declared unlawful.
Urgency
[13]
Respondent takes the point that the matter is not
urgent. In order to deal with this point, it is necessary to briefly
set out the
steps taken up to the hearing of the matter.
[14]
It appears from an “affidavit of service”
filed by Applicant, that one Ntomboxolo Janice Nxumalo served a copy
of the
papers on Respondent on 19 February 2021. Notice was
given that the matter would be heard at 09h00 on Tuesday, 2 March
2021
and Respondent had to file its answering affidavit by 25
February 2021. Respondent served its answering affidavit on Applicant
on 1 March 2021. The matter came before me in motion court on 2 March
2021 and the parties agreed that Applicant is to file his
replying
papers the following day and that the matter be argued on Thursday, 4
March 2021.
[15]
It is trite that the Rules
exist for the Court, rather than the Court for the Rules.
[16]
In
Nelson Mandela
Metropolitan Municipality and Others v Greyvenouw CC and Others
[5]
Plasket J (as he then was) reaffirmed that:
“[37] It is trite that
applicants in urgent applications must give proper consideration to
the degree of
urgency and tailor the notice of motion to that
degree of urgency. It is also true that when Courts are enjoined by
Rule 6(12)
to deal with urgent applications in accordance with
procedures that follow the Rules as far as possible, this involves
the exercise
of a judicial discretion by a Court 'concerning which
deviations it will tolerate in a specific case'.
[38] … it is not in every
case in which the applicant may have departed from the Rules to an
unwarranted extent
that the appropriate remedy is the dismissal of
the application. Each case depends on its special facts and
circumstances. This
is implicitly recognised by Kroon J in
the
Caledon Street Restaurants CC
case when he held
- looking at the issue from the other perspective, as it were - that
the 'approach should rather be that
there are times where, by way of
non-suiting an applicant, the point must clearly be made that the
Rules should be obeyed and that
the interest of the other party and
his lawyers should be accorded proper respect, and the matter must be
looked at to consider
whether the case is such a time or not'.
[40] … Indeed, the erstwhile
Appellate Division has on a number of occasions turned its back on
such formalism
in the application of the Rules. For instance,
in
Trans-African Insurance Co
Ltd v Maluleka
Schreiner
JA held that 'technical objections to less than perfect
procedural steps should not be permitted, in the absence
of
prejudice, to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits'. ... in
D
F Scott (EP) (Pty) Ltd v Golden Valley Supermarket,
Harms JA held that the Rules 'are designed to ensure a fair
hearing and should be interpreted in such a way as to advance,
and
not reduce, the scope of the entrenched fair trial right' contained
in s 34 of the Constitution.”
[17]
Respondent cannot be said to have been
prejudiced, it was also not submitted that it was. I am consequently
of the view that, in
this matter, technical objections to less than
perfect procedural steps will only hamper the
expeditious
and inexpensive decision of the case on the real merits.
[6]
For these reasons, the challenge to the urgency of the application
must fail.
The
legal framework
[18]
With regard to disputes of fact in motion
proceedings, the time-honoured
Plascon-Evans
[7]
rule applies. As more recently referred to in the matter of
Shepherd
Real Estate Investments (Pty) Ltd v Roux Le Roux Motors
[8]
as follows:
“The rule was expressed as follows
in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) ([1984]
2 All SA 366
;
[1984] ZASCA 51)
at 634-635:
‘(W)here in proceedings on notice
of motion disputes of fact have arisen on the affidavits, a final
order, whether it
be an interdict or some other form of relief, may
be granted if those facts averred in the applicant's affidavits which
have been
admitted by the respondent, together with the facts alleged
by the respondent, justify such an order. The power of the Court to
give such final relief on the papers before it is, however, not
confined to such a situation. In certain instances the denial by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact . . . .
If in such
a case the respondent has not availed himself of his right to apply
for the deponents concerned to be called for cross-examination
under
Rule 6(5)
(g)
of the Uniform Rules of Court . . . and the
Court is satisfied as to the inherent credibility of the applicant's
factual averment,
it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant
is entitled to the final relief which he seeks
. . . . Moreover, there may be exceptions to this general rule, as,
for example,
where the allegations or denials of the respondent are
so far-fetched or clearly untenable that the Court is justified in
rejecting
them merely on the papers . . . .’”
[19]
With regard to Applicant’s cause of action
being based on a purported spoliation, Goosen AJA (for the majority)
recently reaffirmed
the doctrinal basis for, and requirements of, the
remedy afforded by the
mandament van spolie
in
Monteiro and Another v Diedricks
[9]
,
as follows:
[10]
“[15] … The principle underlying the remedy
is that the entitlement to possession must be resolved by
the courts,
and not by a resort to self-help…
[17] Two requirements must be met in order to obtain the
remedy. Firstly, the party seeking the remedy must, at the
time of
dispossession, have been in possession of the property. The second is
that the dispossessor must have wrongfully deprived
them of
possession without their consent…”
[20]
It is in the context of the legal framework set
out above that I now turn to deal with the facts and the issues.
The
facts and issues in the context of the Magistrates’ Court Act
and Rules
[21]
Applicant admits that he occupies 7 Summit Place,
Jenvey Road, Summerstrand, Port Elizabeth without paying rental for
such occupation
since December 2018.
[11]
[22]
Having regard to Applicant’s founding
affidavit, he bases his cause of action on a purported spoliation or
the allegation
that no warrant of execution exists.
[23]
Applicant takes issue with the removal of the
movable property based on two grounds. Firstly, that the removal was
unlawful since
there is no warrant of execution and secondly, that
rule 41(7) is not applicable to section 32 of the Act, or so the
argument went.
[24]
Applicant at the hearing of the matter also took
issue with the Order in that it apparently does not relate to the
unit that he
resides in, however this was neither raised in his
founding affidavit nor pertinently raised in his replying affidavit
(and it
took up a considerable amount of time during argument). Mr
Beyleveld SC, who appeared for Respondent, pointed out, correctly so,
that in motion proceedings affidavits constitute both the pleadings
and the evidence and the issues and averments in support of
the
parties’ cases should appear clearly therefrom.
[12]
[25]
I digress to also mention that it is trite that
the applicant must make out his/her case in the founding affidavit.
A litigant
should not be allowed to try and make out a case in the
replying affidavit.
[26]
Before I proceed to deal with the issue of
whether the removal was unlawful, in the context of section 32 of the
Act and rule 41(7),
it is necessary to say something about the status
of an order of court.
[27]
All orders of court,
whether correctly or incorrectly granted, have to be obeyed until
they are properly set aside.
[13]
[28]
The Order was granted in
term of section 32 of the Act. This section is designed to protect a
landlord from losing the security
which he enjoys by virtue of his
hypothec. Its purpose is to preserve the
status
quo
until
such time as judgment may be obtained for arrear rental.
[14]
[29]
Section 32(1) and 32 (2) of the Act read as
follows:
“(1) Upon
an affidavit by or on behalf of the landlord of any premises situate
within the district,
that an amount of rent not exceeding the
jurisdiction of the court is due and in arrear in regard to the said
premises, and that
the said rent has been demanded in writing for the
space of seven days and upwards, or, if not so demanded, that the
deponent believes
that the tenant is about to remove the movable
property upon the said premises, in order to avoid the payment of
such rent, and
upon security being given to the satisfaction of the
clerk to the court to pay all damages, costs and charges which the
tenant
of such premises, or any other person, may sustain or incur by
reason of the attachment hereinafter mentioned, if the said
attachment
be thereafter set aside, the court may, upon application,
issue an order to the messenger requiring him to attach so much of
the
movable property upon the premises in question and subject to the
landlord's hypothec for rent as may be sufficient to satisfy the
amount of such rent, together with the costs of such application and
of any action for the said rent.
(2)
Any person affected by such order may apply to have it set aside.”
[30]
It appears from the Order
granted that Respondent put up the required security and the Order
was granted in the following terms:
“
That the sheriff of the court south do attach so much of
the movable property as may be found at the property situated at 7
Summit
Place, Jenvey Road, Summerstrand, Port Elizabeth immediately…
”
[31]
Applicant takes issue, as I understand him, with
the immediate removal of the movable property. Applicant’s
submission
in this regard was that the only way the immediate removal
could have been authorised was by way of an order of court, that
there
is no such order and therefore any conduct is based on
“tempering (sic) with the order” by the clerk of the
court.
Applicant does not set out any facts to prove the bald
and serious allegation of “tempering (sic) with the Order”
on instruction of Respondent. Further, that the “purported rule
41(7) order”, which according to him does not exist,
is
unlawful.
[32]
The answer to this lies in the provisions of rule
42
(3). In terms of
this rule the method of attachment of property under section 32 of
the Act shall
mutatis
mutandis
be
the same as that of attachment in execution.
[33]
Accordingly, rule 42(3) renders the provisions of
rule 41(7) applicable to the attachment of property in security
of rent in
terms of section 32. The clerk of the court must
accordingly follow the instructions of the landlord, if properly
given,
as to the immediate removal of the property attached and
convey such instructions to the sheriff. The magistrate’s
court hearing the application is not entitled to order the removal of
the goods. The removal can take place only after the provisions
of
rule
41
have been complied with.
[15]
[34]
Respondent attached to its answering affidavit
the instructions, from its attorney of record to the clerk of the
court, for the
immediate removal of the property attached. The words
“immediate removal” appear in manuscript on the left hand
side
of the Order.
[35]
Accordingly, there was no unlawful deprivation of
possession as there was an order by the magistrate, followed by an
endorsement
by the clerk of the court, for the immediate removal of
the property attached.
Address
to which the Order relates (7 Summit Place)
[36]
At length Applicant referred to various documents
attached to his papers, and Respondent’s papers, in developing
his argument
that the Order granted does not relate to the property
that he resides in. In doing so he came to the conclusion that he
actually
resides in section 7, which is door 6, and that the Order
relates to section 3 which is door 7.
[37]
The inescapable inference to be drawn from
Applicant’s papers are that he resides in 7 Summit Place, the
Order was granted
in respect of 7 Summit Place and neither in
Applicant’s founding affidavit nor in his replying affidavit
did he allege that
he resides in “door 6” (section 7).
[38]
It is in any event difficult to understand why
Applicant would launch an application in circumstances where an order
was granted
in terms of a unit that he does not reside in.
Although the return of service does not form part of the papers, the
obvious
inference to be drawn is that the sheriff could only have
executed at the address referred to in the Order.
[39]
Not only is the argument with regard to the
address to which the Order relates so far-fetched it justifies being
rejected out of
hand,
[16]
it also does not form part of Applicant’s founding papers.
Unconcluded
proceedings in the Magistrate’s Court
[40]
Even if I am wrong in all of the above, it is
trite that the higher Courts’ power to intervene in unconcluded
proceedings
in lower courts will be sparingly exercised. As
Cameron JA (as he then was) affirmed in
Magistrate,
Stutterheim v Mashiya
:
[17]
“[14] The higher
Courts, however, have emphasised repeatedly that the power to
intervene in unconcluded
proceedings in lower courts will be
exercised only in cases of great rarity - where grave injustice
threatens, and where intervention
is necessary to attain justice. The
same approach has been followed under the Constitution.
At the same time, although the cases in
which intervention has actually occurred are uncommon, this Court has
refused to define
or limit the circumstances in which intervention
would be justified. The categories remain open.”
[41]
It is common cause in this matter that there are
pending proceedings in the Magistrate’s Court, Port Elizabeth.
This is not
a case
where
grave injustice threatens or where intervention is necessary to
attain justice.
For this reason too,
the application cannot succeed.
Conclusion
and costs
[42]
For all the reasons set out above I am of the
view that Applicant has not made out a case for the relief that he
seeks.
[43]
Applicant ought to have followed the procedures
as provided for in section 32 of the Act, which from the papers it
appears that
he did. But, instead of waiting for the result thereof
he jumped the gun and launched this application.
[44]
I can see no reason why there should be any
deviation from the rule that costs follow the result.
Order
[45]
The application is dismissed with costs.
T.
Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
Applicant:
In person
Obo Respondent:
Adv. A. Beyleveld SC, instructed by
Leon Keyter Attorneys, Port
Elizabeth
[1]
Verbatim quote from Applicant’s notice of
motion (prayers 1 to 8 thereof).
[2]
Prayer 1 of the notice of motion.
[3]
Prayers 2 to 7 of the notice of motion.
[4]
1949 (3) SA 637
(A) at 659. See also
Johannesburg
Society of Advocates and Another v Nthai and Others
(879/2019; 880/2019)
[2020] ZASCA 171
(15 December 2020) at para
[31].
[5]
2004 (2) SA 81
(SE) at paras [37], [38] and [40] (footnotes
omitted).
[6]
Borrowing from Schreiner JA (as he then was) in
Trans-African Insurance Co Ltd
.
[7]
Plascon-Evans Paints (Pty) Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634H – 635C.
[8]
2020 (2) SA 419
(SCA)
at paras [21], [23] and fn
21.
[9]
(Case no. 1199/19)
[2021] ZASCA 015
(2 March 2021).
[10]
At paras [15] and [17].
[11]
With regard to rental, cf. answering affidavit
para 7 and replying affidavit p 7 at para 17.
[12]
See
Minister of Land Affairs & Agriculture
v D & F Wevell Trust
2008 (2) SA
184
(SCA) at 200D; see also
Masstones
(Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd
2017 (1) SA 613
(CC) at fn 35.
[13]
Culverwell v Beira
1992
(4) SA 490
(W) at 494A – C;
Bezuidenhout
v Patensie Sitrus Beherend Bpk
2001
(2) SA 224
(E) at 229B – C
. See
also
Jacobs and Others v Baumann NO
and Others
2009 (5) SA 432
(SCA) at
para [20].
[14]
Halstead v Durant NO
2002
(1) SA 277
(W) at 281B – C.
[15]
Jones & Buckle: The Civil Practice of the
Magistrates’ Courts at Act – 225.
[16]
Plascon Evans
.
[17]
2004 (5) SA 209
(SCA)
at para [14].