About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 212
|
|
Pizel Boerdery (Pty) Ltd v Sheriff of the High Court - Virginia and Another (1160/2023) [2023] ZAFSHC 212 (26 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case Number 1160/2023
In
the matter of:
PIZEL
BOERDERY (PTY) LTD
(Reg
No 2[…])
APPLICANT
JOHANNES
HERMANUS THEODORUS DELPORT
2
nd
APPLICANT
And
THE
SHERIFF OF THE HIGH COURT, VIRGINIA
1
st
RESPONDENT
MILUSCHKA
DELPORT
2
nd
RESPONDENT
CORAM:
NAIDOO, J
HEARD
ON: 16 MAY 2023
DELIVERED
ON: 26 MAY 2023
JUDGMENT
[1]
This matter came before this court as an urgent application initially
on 9 March 2023, where the
applicants sought relief in two parts –
Part A and Part B. In Part A, the applicants sought an order against
the respondent,
the Sheriff of the High Court, directing him to
provide information about certain assets belonging to them, which
appeared to have
been sold in execution, in respect of a debt they
did not owe. They requested the sheriff to confirm whether those
assets were
sold, and if they were, to furnish details of the
purchaser/s thereof as well as the location of the assets. The
applicants also
requested the sheriff to provide them with the
documentation concerning the sale in execution, which he was obliged
by law to keep.
Part B was for an order to vindicate their ownership,
which was dependent on obtaining the information requested in
Part A. Adv (Ms) A Swanepoel represented the applicants, and, while
the first respondent appeared in person before me initially, he was
represented on 16 May 2023 by Adv (Ms) N Van Der Sandt. The
second
respondent was cited only in so far as she may have an interest in
the sale in execution relevant to this matter. No relief
was sought
against her and she played no part in these proceedings.
[2]
Part A of the application was granted, on 9 March 2023, by my
colleague, Daffue J, in terms of
which the sheriff was directed to
furnish the information sought by the applicants, by 15 March 2023.
He failed to do so, and the
applicants brought the current
application to hold the sheriff in contempt of the court order of 9
March 2023. The contempt application
was set down for hearing on 30
March 2023. The applicants sought an order declaring the sheriff to
be in contempt of court and
sentencing the sheriff to a period of
imprisonment. The sheriff appeared in person, indicating that he has
the documentation with
him in court. He also indicated that he wished
to be legally represented and was making arrangements for an attorney
to represent
him. The matter was postponed to 4 April 2023, for these
reasons. On 4 April 2023, the applicants’ counsel advised
that the sheriff had furnished all the required information and they
were no longer proceeding with the contempt application, but
sought a
costs order against the sheriff. Mr Mosikili, the sheriff indicated
that he still wished to be legally represented. The
matter was then
postponed to 16 May 2023 for him to secure legal representation and
for argument on costs. On this day, both parties
were represented.
[3]
Ms Swanepoel argued that the request for information from the
sheriff, was made in terms of Regulation
31 of the Regulations to the
Consumer Protection Act 68 of 2008
, which provides,
inter alia
,
that the person in possession of the records must, forthwith upon
receipt of a written request, furnish those records at his own
cost.
Despite written and telephonic requests for the documentation and
information, the sheriff failed to provide same and the
applicants
brought the application to compel the sheriff to furnish
information, resulting in the court order of 9 March
2023. After the
date of 15 March 2023, specified in the order, had passed, the
applicants’ attorney contacted the sheriff
telephonically as
well as by way of a letter, requesting the required documentation, to
no avail. The contempt application was
then launched and, as
indicated, the documentation was only furnished to the applicants on
3 April 2023. Hence, Ms Swanepoel argued,
that as the sheriff had
brought the applicants to court unnecessarily, they are entitled to
seek a punitive costs order.
[4]
Ms Van der Sandt argued that the contempt application was withdrawn,
and therefore the applicants
should bear the costs. The sheriff is an
officer of the court and imprisoning him would have serious
consequences. He was given
a very short time to comply with the court
order and is a lay man in respect of civil proceedings and the law.
He was not able
to consult with his attorneys before 11 May 2023, and
could not respond to the applicants’ attorneys prior to that.
She asked
that the applicants be ordered to pay the costs,
alternatively that each party should pay their own costs.
[5]
The argument that the applicants withdrew the contempt application
and should therefore pay the costs,
is untenable. The applicants
attempted to avert further costs by requesting the sheriff to comply
with the court order of 9 March
2023. He failed to respond in any
way, even if it was to explain that he was attempting to gather the
information and request that
he be given more time. He complied with
the court order a day before the court hearing on 4 April 2023, and
the court was not favoured
with any explanation for that delay. On 30
March 2023, he alleged, in court, that he had in fact served the
documents on 14 March
2023, before the contempt application was
launched. Despite several requests from the applicants, the sheriff
has failed to produce
proof of such service. He also failed to
provide his legal representative with such proof.
[6]
The sheriff is indeed an officer of the court and as such, a high
standard of conduct is expected
of him, and it is also expected of
him to respect orders of the court. The sheriff in this matter
appears to have fallen short
of that standard. I do, however, take
note that initially, he experienced problems with the computer
system, which may have impacted
on his ability to respond timeously
to the applicants’ various requests. The court has not heard
what the reasons are for
any further delays.
[7]
It is well established in our law that the general rule regarding
costs is that the unsuccessful
party pays the costs of the successful
party on the party and party scale. The determination of an
appropriate costs order is in
the discretion of the court, which
discretion is usually informed by a number of factors in order that
such discretion be exercised
judiciously.
Erasmus in Superior
Court Practice, D5-6,
states it succinctly as follows:
In
leaving the court a discretion, the law contemplates that it should
take into consideration the circumstances of each case, carefully
weighing the issues in the case, the conduct of the parties and any
other circumstance which may have a bearing on the issue of
costs and
then make such order as to costs as would be fair and just between
the parties.
[8]
Although at first blush, the sheriff’s conduct may appear to be
deserving of severe sanction,
I am constrained to find that it is
conduct that is indicative of
mala fides
or wilfulness. From
what I have set out above, it appears that the slowness of the
sheriff’s reactions is his main problem.
These proceedings
would have drawn sharply to his attention that if he does not
maintain the high standard of conduct expected
of him as an officer
of the court, he does so at his own peril. It is after all, not a
usual occurrence for a sheriff of the court
to be brought before the
court in this manner. I am of the view that an award of costs on the
punitive scale is unduly harsh and
not necessary in this case. I am
cogniscent of the fact that the sheriff performs a service for the
legal profession and for the
court, and that he also did so in this
matter. I have no doubt that the legal representatives of the
applicants will continue to
use his services in the future. It is
hoped that he now understands that promptness in discharging his
official duties is of paramount
importance. I am of the view that the
order I will make would be equitable and fair in the circumstances.
[9]
In the circumstances I make the following order:
Each party is to pay
their own costs
S NAIDOO J
On
Behalf of the Applicants:
Adv
A Swanepoel
Instructed
by:
Noordmans
Attorneys
4
7
th
Street
Arboretum
Bloemfontein
On
Behalf of the 3
rd
Respondent:
Adv
N Van Der Sandt
Instructed
by:
Kramer
Weihmann Attorneys
KW
Building, 24 Barnes Street
Westdene
Bloemfontein
(Ref:
Mr D Coetzee)