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2023
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[2023] ZAECMKHC 26
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Minister of Police v Magwebu and Others (2160/2022) [2023] ZAECMKHC 26 (14 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: 2160/2022
Matter heard on:
02 February 2023
Judgement delivered
on: 14 February 2023
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED.
In the matter between: -
THE MINISTER OF
POLICE
Applicant
and
ANELE
MAGWEBU
First Respondent
Z.S. PONOANE &
CO.
Second Respondent
THE SHERIFF OF THE
COURT, QUEENSTOWN
Third Respondent
JUDGMENT
SMITH
J:
[1]
The applicant, namely the Minister of Police, brought proceedings for
an order, inter
alia, declaring unlawful and setting aside a warrant
of execution issued by the first defendant on 23 November 2021, as
well as
the attachment of property and sale in execution held
pursuant thereto.
[2]
The first respondent is the judgment creditor and had issued the
impugned warrant
in pursuance of an
allocatur
in respect of
taxed costs. The second respondent is the attorneys firm who
represented the first respondent and had issued the
impugned warrant.
The third respondent is the Sheriff of the Court for the Komani
district.
[3]
The warrant of execution was issued in the following circumstances.
The first respondent
instituted civil action against the applicant in
the Whittlesea Magistrate Court during 2012. He eventually obtained
judgment in
the sum of R75 000, with costs. His costs were
subsequently taxed in the sum of R138 184.76. Aggrieved by the
Taxing
Master’s decision to allow certain items despite his
objection, the applicant took the latter’s decision on review.
The review was, however, resolved in favour of the first respondent
and the Taxing Master’s
allocatur
was increased. The
applicant thereafter purported to lodge another review application,
challenging the same items on the basis
of the same factual
averments. He was of course not entitled to so since the matter was
res judicata
and his remedy was to appeal the Taxing Master’s
decision if he remained aggrieved. In argument before me, his legal
representatives
have correctly conceded that the lodging of the
second review application was irregular, has no legal consequences,
and the first
respondent was consequently entitled to execute on the
judgment debt.
[4]
The first respondent’s attempt to execute on the first warrant
of execution
was thwarted by the applicant when the latter
successfully challenged the validity of that warrant and the
resultant attachment
and sale of property on the basis that the first
respondent had failed to comply with the relevant provisions of the
State Liability
Act, 20 of 1957 (the Act). As a consequence of that
order, the applicant has abandoned the relief in respect of the
attachment
of state vehicles and the sale in execution. It now only
seeks an order that the warrant re-issued on 23 November 2021 be set
aside
and the respondents pay costs on a punitive scale.
[5]
The fact that the validity of the re-issued warrant of execution is
the only issue
that remains for decision, has implications for the
applicant’s case against the third respondent. Ms
Sephton
,
who appeared on his behalf, has correctly submitted that the former
has no interest whatsoever in the resolution of that issue,
neither
can he add anything that will contribute to the debate regarding
validity of the warrant. The application against the third
respondent
consequently falls to be dismissed with costs.
[6]
The applicant contends that the re-issued warrant of execution falls
to be set aside
on the grounds that the first respondent has failed
to comply with the provisions of the Act and it was issued under the
wrong
case number.
[7]
In terms of section 3 (3) of the Act, a final court order against the
department for
the payment of money, must be satisfied within 30 days
of the date of an order or the time period agreed upon by the
judgment creditor
and the accounting officer of the relevant
department. And in terms of section 3 (4), if the relevant department
does not pay within
either of the aforementioned time periods, the
judgment creditor may serve the court order in terms of the
applicable court rules
on the accounting officer, the state attorney
or another attorney acting on behalf of the department, and the
relevant treasury.
[8]
The relevant treasury must then ensure that the judgment debt is
settled within 14
days of the service on it of the court order or
make acceptable arrangements for payment with the judgment creditor,
in terms of
section 3 (5) of the Act. It is only if the relevant
treasury fails to comply with its obligations in terms of the
aforementioned
sections that the judgment creditor is entitled to
issue a warrant of execution in terms of subsection 3 (6) of the Act.
[9]
The obligations of the Sheriff and the judgment creditor when
executing a warrant
are set out in section 3 (7) of the Act. Because
I am only concerned here with the validity of the impugned warrant of
execution,
I am not required to pronounce on the extent to which
there has been compliance with that section.
[10]
Mr
Madokwe
, who together with Ms
Ntikinca
appeared for
the applicant, was constrained to concede that the first respondent
has complied with section 3 (4) of the Act. It
is also common cause
that the treasury did not settle the debt within the time period
allowed in terms of subsections 3 (5) and
(6) of the Act, entitling
the first respondent to re-issue the warrant.
[11]
What then remains is the contention that the warrant is invalid
because it was issued under the
wrong case number. In this regard it
is common cause that the re-issued warrant of execution initially
bore the incorrect case
number i.e. 55/2012, instead of 35/2012. It
was, however, subsequently amended to reflect the correct case
number. The applicant
contends that this mistake vitiated the warrant
because no valid judgment or court order existed under that case
number.
[12]
The discretion to suspend the operation of writs vested in courts in
terms of Uniform Court Rule
45A has always been exercised only if
there is a material error in the writ, by way of example: where it
has not been issued in
accordance with the judgment, the incorrect
persons have been cited, or the judgment debt had been extinguished.
(
Erasmus: Superior Courts Practice, Second Edition
, D1 -604)
[13]
To my mind the overly technical argument advanced by the applicant is
not sustainable. It is
common cause that the warrant reflected the
correct details of the parties, the correct citation of the court in
which proceedings
had taken place, and the correct names and
reference numbers of the parties’ respective attorneys. The
reflection of the
incorrect case number was accordingly an
inconsequential and bona fide mistake.
[14]
Mr
Cole
SC, who appeared for the first respondent, has pointed
to several emails in which the applicant’s attorneys cite the
names
of the parties without any reference to the case number. He
submitted that it is therefore manifest that the applicant was under
no illusions as to which matter the warrant of execution related to
and could consequently not have suffered any conceivable prejudice.
[15]
I am therefore satisfied that the impugned warrant of execution had
been properly issued in compliance
with subsections 3 (4), (5) and
(6) of the Act. The fact that the warrant initially bore the
incorrect case number was a bone fide
error, as a consequence of
which the applicant did not suffer any prejudice whatsoever. And to
my mind, that error was not sufficiently
material to vitiate the
warrant. The application must therefore fail.
[16]
In the result the following order issues:
a)
The application is dismissed.
b)
The applicant is ordered to pay the costs of the
first, second and third respondents on the party and party scale.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant:
Adv.
V. Madokwe
Adv.
L. Ntikinca
N
N Dullabh & Co.
5
Bertram Street
MAKHANDA
(Ref.:
Mr Wolmarans)
Counsel
for the 1
st
& 2
nd
Respondents:
Adv.
S.H. Cole SC
Mili
Attorneys
100
High Street
MAKHANDA
(Ref.:
Mr Mili)
Counsel
for the 3
rd
Respondents:
Adv.
S. Sephton
Neville
Borman & Botha
22
Hill Street
MAKHANDA
(Ref.:
Justin/Riette)