MEC for The Department of Public Works and Others v Ikamva Architects and Others (235/2021) [2022] ZAECBHC 13; [2022] 3 All SA 760 (ECB); 2022 (6) SA 275 (ECB) (17 March 2022)

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[2022] ZAECBHC 13
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MEC for The Department of Public Works and Others v Ikamva Architects and Others (235/2021) [2022] ZAECBHC 13; [2022] 3 All SA 760 (ECB); 2022 (6) SA 275 (ECB) (17 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
REPORTABLE
Case
no: 235/2021
In
the matter between:
MEC
FOR THE DEPARTMENT OF PUBLIC

First Applicant
WORKS
MEC
FOR THE DEPARTMENT OF HEALTH

Second Applicant
MEC
FOR FINANCE, EASTERN CAPE

Third Applicant
AND
IKAMVA
ARCHITECTS

First Respondent
THE
SHERIFF OF THE HIGH COURT

Second Respondent
KING
WILLIAMS TOWN
THE
SHERIFF OF THE HIGH COURT

Third Respondent
DISTRICT
OF ZWELITSHA, MDANTSANE AND
STUTTERHEIM
JUDGMENT
VAN
ZYL DJP, TOKOTA AND GOVINDJEE JJ
Background
[1]
The first and second applicants (‘the
Departments’) launched an application seeking urgent relief to
set aside:
(a)
two notices of attachment dated 11 March
2016;
(b)
a writ of attachment dated 10 March 2021;
(c)
the attachment of the Department of
Health’s Standard Bank account number 273021567 (the bank
account attachment) on 11 March
2021.
[2]
In the alternative, the Departments sought
to stay the further execution of the writs and uplift the attachment
of the bank account
pending the final determination of an application
for leave to appeal in case number 2610/2019 (‘the Beshe J
application’),
including any consequent appeals.
[3]
The
first respondent’s attempted execution stems from a default
judgment granted by Malusi AJ on 1 December 2015 in the sum
of
R41 031 279,58 (‘the Malusi AJ judgment’).
Acting on the basis of a writ of attachment for movable property

issued on 11 March 2016 (‘the first writ’), the third
respondent attached ‘all office furniture and related office

equipment and vehicles’ of the Departments on that date.
Shortly after this, the Departments brought an urgent application
to
set aside the first writ. That application was postponed sine die, by
agreement between the parties and by order of court, for
the
Departments to take steps to finalise an application for leave to
appeal and / or an application for rescission.
[1]
[4]
When
the Constitutional Court, on 29 July 2019, refused the Departments’
application for leave to appeal the dismissal of
an application to
rescind the Malusi AJ judgment, the first respondent (‘Ikamva’)
proceeded with steps in execution,
resulting in an urgent self-review
application by the Departments during September 2019. This culminated
in an order by agreement
before Rugunanan AJ on 17 September 2019,
staying the execution of the writ pending the determination of the
self-review application.
[2]
[5]
That application was dismissed by Beshe J
on 16 February 2021. An application for leave to appeal was dismissed
on 30 April 2021
and a petition for special leave has followed. When
Ikamva again took steps to execute the writ, the Departments brought
an urgent
application to stay the execution on 5 March 2021. That
application was struck from the roll by Lowe J for lack of urgency on
10
March 2021. Ikamva issued a further writ of attachment for the sum
of the default judgment on the same date, this time specifically
in
respect of the second applicant’s bank account (‘the
second writ’), prompting this urgent application.
[6]
The
first and second applicants filed a Rule 16A Notice on 9 June 2021,
raising various matters in relation to the relief sought
in the
application. This followed the issue of directives by this court. The
third applicant subsequently applied for leave to
intervene and
claimed that any writ of execution or attachment pursuant to the
Malusi AJ judgment should be declared invalid, unlawful
and
unconstitutional.
[3]
It also
filed a Rule 16A Notice to that effect. This intervention was opposed
by Ikamva, who additionally filed applications in
terms of Uniform
Rule 30 to set aside the Departments’ Rule 16A notice (dated 9
June 2021) and the application for intervention
as irregular
proceedings.
[7]
There
is no merit in this opposition and the third applicant must be
permitted to intervene for the following reasons. The third
applicant
has a direct and substantial interest in the outcome of the
litigation, namely a possible legal interest that may be

prejudicially affected by the judgment of the court.
[4]
Ikamva sought the enforcement of an order sounding in money. Section
3 of the State Liability Act, 1957 (‘the Act’)
[5]
provides for service of an unsatisfied order for payment on the
relevant treasury, which must ensure satisfaction within 14 days
of
service, or make satisfactory arrangements with the judgment
creditor. Section 3(11) of the Act provides for a range of possible

options to be pursued by the relevant treasury to comply with its
obligations. The relevant treasury is therefore a necessary party
to
the process of enforcement of an order of court against the State
sounding in money. The third applicant has a direct and substantial

interest in whether or not the writs are to be executed, set aside or
stayed, and must be permitted to participate in the proceedings.
As
will become evident, various issues raised, including whether the
attachment of a state bank account is consistent with s 226
of the
Constitution, have constitutional implications.
Issues for
determination
[8]
The following issues require determination:
(a)
The validity of the Malusi AJ judgment.
(b)
Whether the two notices of attachment dated
11 March 2016, the second writ and / or the bank account attachment
on 11 March 2021
should be set aside.
(c)
If not, whether further execution should be
stayed or otherwise suspended and the bank account attachment
uplifted pending the finalisation
of the application for leave to
appeal in the Beshe J application, including any consequent appeals.
(d)
Whether any writ of execution or attachment
pursuant to the Malusi AJ judgment should be declared invalid,
unlawful and unconstitutional.
(e)
Whether the application was sufficiently
urgent to warrant the way it was launched.
[9]
Given the issues raised, it is convenient
to first focus on the issue of nullity, before addressing
satisfaction of final court
orders in the context of the Act and
whether incorporeal movable state assets may be attached. This
includes consideration of whether
the attachment of a state bank
account is contrary to s 226 of the Constitution. The 2016 notices of
attachment and the second
writ will then be considered.
Was the default
judgment a nullity?
[10]
The
court issued a directive on 18 May 2021 requiring supplementary
written submissions on various issues pertaining to Majiki J’s

jurisdiction to strike out the Departments’ defence, whether
the framing of that order invalidated the subsequent judgment
of
Malusi AJ and whether the Act permits the attachment of state monies
in the execution of a money judgment.
[6]
[11]
The root of this line of enquiry flows from
the order of Majiki J, granted on 10 November 2011:
‘
The
Defendants be granted a period of ten (10) days from date of service
hereof to reply to the Plaintiff’s Notice in terms
of Rule
35(3) dated 22 July 2011, failing which the Defendant’s defence
will be struck out and the Plaintiff will apply for
judgment against
the Defendants based on the same papers, amplified if necessary.’
[12]
Dukada J was subsequently required to
consider whether the Majiki J order meant that the Departments’
defence had automatically
been struck out as soon as they had failed
to comply within the period provided for, or whether Ikamva was still
required to apply
to strike out the defence. Dukada J preferred the
latter interpretation and dismissed an application for default
judgment.
[13]
Plasket
J, on behalf of a full bench, held that, on an interpretation
thereof, the Majiki J order was clear, even though it had
been
crafted unusually.
[7]
The full
bench considered this to be a strong indicator that Majiki J had
intended the order to have a different effect to the
usual order, as
follows:
[8]
‘
Paragraph
1 of the order was, in my view, unambiguously intended to provide for
the striking out of the defendants’ defences
automatically in
the event of non-compliance after ten days of service of the order on
them. It follows that Dukada J erred when
he interpreted the order to
mean that an application for the striking out of the defence was
required before an application for
default judgment could be
considered. In other words, he ought to have heard the application
for default judgment. That means that
the appeal must succeed.’
[14]
Ikamva
was consequently required to set down the application for default
judgment again, also so that evidence could be led on the

quantification of damages.
[9]
The learned judge concluded by suggesting a way forward for the
Departments based on Uniform Rule 27: comply with the order, give
a
full explanation for the default and apply for the defence to be
re-instated.
[10]
[15]
The Departments appear to have initially
attempted to follow that route. On 30 January 2015 they applied for
condonation, extension
of time and reinstatement of their defences,
but then withdrew this application before Lowe J. Ikamva proceeded to
apply for default
judgment. Malusi AJ ruled that the Departments
should not be heard given that their defence had been struck out.
Having heard Ikamva’s
evidence, he awarded default judgment in
its favour. The Departments failed in their attempt to rescind that
judgment. Hartle J
held that the remedy of rescission was
ill-conceived in the circumstances and the application for rescission
was dismissed with
costs. An application for leave to appeal that
order was dismissed and subsequent petitions to the full bench,
Supreme Court of
Appeal and Constitutional Court failed.
[16]
The
Departments argued that the Majiki J and Malusi AJ orders ought to be
treated as nullities. A judgment may not be capable of
execution
where the judgement falls within a narrow band of orders considered
invalid by reason of having been made without jurisdiction.
A court
may, even without an order having been challenged and set aside,
refuse to enforce and give effect to an order that was
beyond the
powers of the court which granted it.
[11]
It is recognised as an exception to the general rule that a court
order remains binding and must be complied with until it is set

aside.
[12]
[17]
Plasket
J did not determine the validity and/or the correctness of the Majiki
J order as it stood. He left that question open, raising
concern
about the competency of the order itself. That order provided the
legal basis for Malusi AJ to subsequently grant default
judgment. Put
differently, default judgment arose directly from the striking out
order and could not have been granted but for
that order, which was
the foundation for everything that followed.
[13]
Despite this, the parties did not address the validity of the Majiki
J order in any of the subsequent proceedings until now.
[18]
It
must be accepted that the Majiki J order was erroneous on the basis
that it followed a one- as opposed to two-stage procedure.
Uniform
Rule 35(7) does not contemplate the striking out of a defence
automatically but rather on application on the same papers,
amplified
if necessary. As noted by Plasket J, it is only when a court has had
the opportunity to decide that grounds exist for
the striking out of
a defence that an application for default judgment may be made.
[14]
The dismissal of a claim or the striking of a defence is a drastic
remedy, and the power to grant such a remedy is discretionary,
a
discretion that must be exercised judicially.
[15]
The power to strike out a defence is derived from the Uniform Rules.
The interpretation and application of a court rule often requires
a
consideration of the provisions of the Constitution.
[16]
Section 34 is relevant in this respect, providing that everyone has
the right to have a dispute that can be resolved by the application

of law decided by a court or tribunal in a fair public hearing. The
striking out of a plaintiff’s claim or a defendant’s

defence has a far-reaching impact on this right. It has the potential
to deprive a litigant of a fair trial, bringing an end to
a claim or
defence. In the case of a defendant, the usual effect of a striking
out is to prevent the presentation of a defence
so that judgment will
be entered for the plaintiff, subject to any further order of court.
[19]
By
following a one-step process, the court did not have the opportunity
to consider whether it had been proved that the party concerned
had
failed to comply with the rule in question. There was then no option
to remedy the breach by giving the party the opportunity
to comply.
The consequence was that the court did not have the opportunity to
exercise its discretion in determining what, if any,
procedural
consequence should follow because the party had failed to remedy the
breach. This was a discretion to be exercised judicially
on the facts
before court and bearing in mind that striking out should normally be
a last resort, considering that it has the potential
to deprive a
litigant of an entrenched right to a fair trial.
[17]
A virtue of the Uniform Rules is that it provides for flexible
remedies for breaches of the Rules, giving the court the opportunity

to make the sanction fit the breach.
[18]
Importantly, the discretion should only be exercised after the
defendant has been given an opportunity to be heard in compliance

with the
audi
alteram partem
rule.
[20]
This did not happen in the present matter.
The defence was struck out in the absence of the Departments and
without:
(a)
The applicant requesting the striking out
having placed any facts before the   court justifying the
granting of such a far-reaching
order;
(b)
The
Departments having first been placed in a position to either seek
condonation for their failure to comply with the order to
compel, or
to convince the court not to strike out their defence and to make an
alternative order that would ensure compliance
with the order to
compel discovery without the drastic step of striking out their
defence.
[19]
(c)
The court having been placed in a position
to exercise its discretion judicially, as envisaged by Uniform Rule
35(7), and to make
an informed decision.
[21]
The order striking out the Departments’
defence was therefore granted erroneously as envisaged in Uniform
Rule 42(1)
(a)
.
Uniform Rule 42 provides for the rescission and variation of an order
or judgment. In terms of this rule, the High Court has a
discretion,
in addition to any other powers it may have, to
mero
motu
or upon application of any party
affected, rescind or vary an order or judgment ‘erroneously
sought or erroneously granted
in the absence of any party affected
thereby’.
[22]
In
Promedia
Drukkers & Uitgawers (Edms) Bpk v Kaimowitz and Others
,
[20]
Van Reenen J held that:
‘
Relief
will be granted under this rule if there was an irregularity in the
proceedings, if the court lacked legal competence to
have made the
order, and if the court, at the time the order was made, was unaware
of facts which, if known to it, would have precluded
the granting of
the order. It is not necessary for an applicant to show “good
cause” for the Rule to apply.’
[23]
None of the parties requested any of the
courts that subsequently presided over the matter to act in terms of
Uniform Rule 42(1)
(a)
,
nor did any of the said courts
mero motu
consider setting aside the order of Majiki J and the consequential
judgement of Malusi AJ as envisaged in the rule. The courts
were
asked to determine whether the Departments had satisfied the
requirements for rescission of the judgement of Malusi AJ in
terms of
Uniform Rule 31(2)
(b)
or the common law. The courts were not called upon to consider the
matter on the basis that the order of a Majiki J was an incompetent

order and, as such, erroneously granted, nor did they do so.
[24]
The
question raised by this Court with the parties at the hearing of the
matter was whether the order of Malusi AJ, which was granted
in
consequence of the wrongly granted striking out order, was a valid
order capable of enforcement by way of execution. The answer
to this
question depends on whether the striking out order, and the order of
Malusi AJ that followed thereon, are nullities that
both fall within
the narrow band of orders which this court may refuse to give effect
to by way of execution, without first setting
it aside.
[21]
The Majiki J order is the foundation of the default judgment granted
by Malusi AJ. From this it follows that had the Majiki J order

amounted to a nullity, this would impact upon the executability of
the Malusi AJ judgment.
[22]
[25]
In
our view, however, the order of Majiki J does not fall within the
category of orders that may, on the face of it, be regarded
as being
invalid. An order is not invalid simply because it is erroneous as
contemplated in Uniform Rule 42(1)
(a)
.
It remains binding until set aside. Majiki J cannot be said to have
lacked jurisdiction to grant the order striking out the Departments’

defence.
[23]
Uniform Rule
35(7) gives the court the authority or power to strike out a
defendant’s defence. Majiki J accordingly had that
power. That
it was incorrectly exercised does not,
per
se
,
render the order invalid. The order exists in fact and continues to
have legal effect until it is set aside.
[26]
Similarly,
the question whether the default judgment can be disregarded as a
nullity at this stage, on the strength of
Motala
,
must be answered in the negative.
[24]
Unlike
Motala
,
it cannot be said that Malusi AJ was not empowered to grant default
judgment. It cannot be found that Malusi AJ acted outside
of his
powers in granting the application for default judgment. There can be
no suggestion, as in
Motala
,
that the learned judge was acting contrary to the law in proceeding
as he did. At that moment, Malusi AJ had the authority to
make the
decision he made. On its face, that order is valid and competent and
nullity ‘… does not – so to speak
– jump out
of the page …’, as was the case with the nullity of the
orders in
Changing
Tides
and
Motala
.
[25]
[27]
In any event, the Constitutional Court has
supported the following view it expressed in
Tsoga
:
‘…
Motala
is only authority for the proposition that if a court “is able
to conclude that what the court [that made the original
decision] has
ordered cannot be done under the enabling legislation, the order is a
nullity and can be disregarded”. This
is a far cry from the
inference that any court order that is subsequently found to be based
on an invalid exercise of public power
can be ignored.’
[26]
[28]
While
it may have been open for Malusi AJ to refuse the application on the
basis that the Majiki J order was erroneous,
[27]
the failure to do so does not of itself amount to a further nullity,
even if the default judgment was wrongly issued.
[28]
That application was properly before Malusi AJ on the strength of an
order striking out the Departments’ defence. That order
was
valid until set aside in appropriate proceedings. Court orders must
be appropriately challenged by means of a legally cognisable
process,
as envisaged in the Uniform Rules, to be set aside.
[29]
In addition, disregarding default judgments by treating them as
nullities at the enforcement stage, years after they have been

ordered and unsuccessfully challenged in the courts, will create
legal uncertainty, with potentially chaotic consequences.
[30]
[29]
The question whether the Malusi AJ judgment
was a nullity, as raised by the court, focused on a narrow legal
issue. In the absence
of this court having been placed in a position
to make an informed decision as to the exercise of a discretion as
envisaged in
Uniform Rule 42(1)
(a)
,
it would be inappropriate in these proceedings to make an order that
would have the effect of setting aside the judgment of Malusi
AJ. The
present circumstances, where a litigant may have been entitled to
assume that the party against whom the order was granted
had accepted
its finality, is another reason for this. As a result, the issues
raised in these proceedings arising from the execution
of the default
judgment will be addressed on the basis that the judgment is capable
of execution.
Satisfaction of final
court orders and the
State Liability Act
[30
]
The
Act consolidates the law relating to the liability of the State in
respect of acts of its employees.
[31]
Section 3 is relevant in this matter and requires analysis.
[32]
[31]
Section 3(1) confirms that:
‘
Subject
to subsections (4) to (8), no execution, attachment or like process
for the satisfaction of a final court order sounding
in money may be
issued against the defendant or respondent in any action or legal
proceedings against the State or against any
property of the State,
but the amount, if any, which may be required to satisfy any final
court order given or made against the
nominal defendant or respondent
in any such action or proceedings must be paid as contemplated in
this section.’
[32]
As
the heading of the section suggests, the purpose appears to be to
ensure ‘satisfaction of final court orders sounding in
money’,
permitting execution, attachment and the like following compliance
with a stipulated process and sequence. The reason
for this is clear.
Final orders of court must, if not successfully appealed or
rescinded, be satisfied and stand to be executed.
The integrity of
the Constitution demands that governmental departments, which are
organs of state, have a duty over and above
that of the average
litigant to comply with court orders.
[33]
To this end, the State Attorney or attorney appearing on behalf of
the department concerned must, within seven days after a court
order
sounding in money against a department becomes final, inform the
executive authority and accounting officer of that department
and the
relevant treasury of the final court order in writing.
[34]
A final court order against a department for the payment of money
must be satisfied within 30 days of the date of the order becoming

final, alternatively within a time period agreed upon by the judgment
creditor and the accounting officer of the department concerned.
[35]
[33]
The
Act anticipates that a final order against a department for the
payment of money may nevertheless not be satisfied within this

(30-day or agreed) time period.
[36]
In that case, ‘…the judgment creditor may serve the
court order in terms of the applicable Rules of Court on the
executive authority and accounting officer of the department
concerned, the State Attorney or attorney of record appearing on
behalf
of the department concerned and the relevant treasury.’
[37]
Within 14 days of such service, the relevant treasury ‘must’
ensure that either the judgment debt is satisfied, alternatively,
and
if there are inadequate funds available in the vote
[38]
of the department concerned, the relevant treasury must ensure that
acceptable arrangements have been made with the judgment creditor
for
the satisfaction of the judgment debt.
[39]
[34]
It
is the failure of the relevant treasury to do so (within 14 days of
service of the final court order) that triggers the possibility
of
the issue of a writ of execution or a warrant of execution.
[40]
The Registrar must then, upon the written request of the judgment
creditor or his or her legal representative, ‘issue a writ
of
execution or a warrant of execution in terms of the applicable Rules
of Court against movable property owned by the State and
used by the
department concerned’.
[41]
There is one proviso. Where a judgment by default was granted against
a department, the writ or warrant of execution can only be
issued by
the registrar if he or she is satisfied that there has been
compliance with the service requirements stipulated in s
3(4).
[42]
Subsection (7)
(b)
provides that the sheriff and the accounting officer of the
department concerned ‘ … may, in writing, agree on the

movable property owned by the State and used by the department
concerned that may not be attached, removed and sold in execution
of
the judgment debt because it will severely disrupt service delivery,
threaten life or put the security of the public at risk’.
[35]
If no agreement is reached as envisaged in
s 3(7)(
b
),
the sheriff may attach ‘any’ movable property owned by
the State and used by the department concerned (the proceeds
of the
sale of which will, in their opinion, be sufficient to satisfy the
judgment debt) and remove and sell it after the expiry
of 30 days
from the date of attachment. The removal of the property is subject
to there being no application to court as contemplated
by s 3(10).
Section 3(10)
(a)
provides that, ‘A party having a direct and substantial
interest’ may, before the attached property is sold in
execution,
apply to a court for a stay ‘on the grounds that the
execution of the attached movable property –
(i)
would severely disrupt service delivery,
threaten life or put the security of the public at risk; or
(ii)
it is not in the interests of justice.’
Section 3(10)
(b)
provides that if the application is brought by the department
concerned, it must identify movable property that may instead be

attached and sold in execution of the judgment debt, and the location
of this property.
[36]
To summarise, s 3:
(a)
regulates the manner of the enforcement or
giving effect of a final money judgment or order granted by a court
of law against the
State;
(b)
serves to identify the functionaries whose
duty it is to pay the judgment debt;
(c)
serves to authorise those functionaries to
pay the judgment debt, and identifies the source of the monies from
which payment must
be made;
(d)
provides for specific time periods which
are to expire, and the actions or the omission of the relevant
functionaries to act as
contemplated, before the judgment creditor
may request the registrar to issue a writ of execution;
(e)
identifies and pertinently limits the
property that may be attached and sold in execution to movable
property owned by the State
and used by the department concerned;
(f)
importantly,
provides for mechanisms and procedures to prevent the attachment of,
and the selling in execution of state property
that will disrupt
service delivery, threaten life, or put the security of the public at
risk. This is consistent with, and complementary
to, the inherent
jurisdiction of the court to generally regulate its own process, and
to stay the execution of a judgement on such
terms as it may deem
fit, if the interests of justice so require.
[43]
[37]
By enacting s 3, the legislature aimed at
finding a balance between the right of a creditor to get satisfaction
of a judgment debt,
against the wider public interest in the delivery
of services by state departments in compliance with their
constitutional mandates.
The objective of the prescripts and the
mechanisms created by s 3 is clearly to make the attachment of state
property a last resort.
It obliges the department concerned to pay
the judgment debt. When the department fails to do so, it obliges the
relevant treasury
to pay the debt on behalf of the department, or to
make acceptable arrangements for its payment. It is only after there
has been
a total failure to pay the judgement debt that the judgement
creditor may seek to attach the property of the department. The
attachment
is, however, subject to any written agreement between the
sheriff and the departments concerned on the movable property that
may
not be attached, removed and sold in execution. The purpose of
this is to prevent the attachment of assets which may result in a

disruption of the department’s constitutional mandate to
deliver services to the public.
[38]
The
issuing of a writ takes place in terms of the Uniform Rules. The
application of these rules is, however, subject to the provisions
of
the Act.
[44]
The Uniform Rules
can accordingly only find application to the extent that they are not
in conflict with the s 3 prescripts.
Which movable state
assets may be executed against?
[39]
The Departments argued that attachment of a
state organ’s bank account was impermissible for various
reasons. These arguments
are elaborated upon in the submissions of
the third applicant. The question raised is whether ‘movable
property’ in
s 2 of the Act must be read so as to include both
corporeal and incorporeal property.
[40]
The
Act does not mention the inclusion of incorporeal rights in its
treatment of ‘movable property’ directly. It does
refer
to the issue of a writ, in terms of the applicable Rules, against
movable property owned by the state and used by the department

concerned.
[45]
Uniform Rule
45, by contrast, clearly contemplates the attachment of incorporeal
movable property without the need for a prior
application to
court.
[46]
[41]
The
interpretation of language, including statutory language, is a
unitary endeavour requiring the consideration of text, context
and
purpose.
[47]
Applying this
approach to s 3, there is nothing that points to a conclusion that
‘movable property’ in the section
must be limited to
corporeal movables. Such an interpretation would effectively
differentiate between judgment creditors executing
judgments obtained
against private litigants, on the one hand, and against the state, on
the other.
[48]
Debts owing to
a judgment debtor are, like any other incorporeal property,
executable and capable of being attached and sold.
[49]
The State would be placed in an advantageous position vis-à-vis
other judgment debtors if the Act is interpreted to exclude
this
possibility. This would constitute an unjustifiable differentiation
between a judgment creditor who obtains judgment against
the state
and a judgment creditor who obtains a judgment against a private
litigant. In
Nyathi
,
the Constitutional Court explained the difficulties with such an
approach, bearing in mind the provisions of the Bill of Rights
and
section 165(5) of the Constitution.
[50]
[42]
It
is also relevant that s 3 of the Act previously prevented execution,
attachment or the like against the State for the satisfaction
of a
final court order sounding in money. The problem with that approach
was described in
Mjeni
v
Minister of Health and Welfare, Eastern Cape
(with
reference to the Act prior to its amendment):
[51]
‘
A
deliberate non-compliance or disobedience of a court order by the
state through its officials amounts to a breach of [a] constitutional

duty [imposed by s 165 of the Constitution]. Such conduct impacts
negatively upon the dignity and effectiveness of the Courts…The

constitutional right of access to courts would remain an illusion
unless orders made by the courts are capable of being enforced
by
those in whose favour such orders were made. The process of
adjudication and the resolution of disputes in courts of law is
not
an end in itself but only a means thereto; the end being the
enforcement of rights or obligations defined in the court order.
To a
great extent s 3 of Act 20 of 1957 encroaches upon that enforcement
of rights against the state by judgment creditors.’
[43]
Such an approach was held to be
unconstitutional in
Nyathi
,
resulting in the amendment to the section that followed. The purpose
of that amendment was to eradicate the blanket restriction
that
prevented a judgment creditor being able to execute against the State
in the manner provided for in the Uniform Rules. The
legislature, in
enacting changes to s 3 by reason of the judgment of the
Constitutional Court, must be taken to have been aware
that the
execution of a money judgment takes place in terms of the Uniform
Rules, and that those Rules authorise the attachment
of both
corporeal and incorporeal movables in satisfaction of a money
judgment. If the legislature intended to limit the notion
of ‘movable
property’ in the Act to corporeal movables, one would have
expected it to say so expressly. There is nothing
in the language
used in the section to suggest such a limitation. On the contrary, s
3(7)
(c)
pertinently refers to the attachment of ‘
any
movable property owned by the State and used by the department
concerned’ (own emphasis).
[44]
Legislation
must be construed consistently with the Constitution and thus, where
possible, interpreted so as to exclude an unconstitutional

construction.
[52]
The core
argument advanced in giving a restrictive interpretation to s 3 of
the Act to provide only for attachment of corporeal
movables is to
address the potential disruption of the functioning of state
departments through the attachment of bank accounts.
Interpreting the
Act and its references to ‘movable property’ in a way
that permits judgment creditors to execute against
state bank
accounts will not threaten service delivery any more than the
attachment of corporeal movables.
[53]
In any event, the sheriff and a department official may agree in
writing on movable property that may not be attached, removed
and
sold in execution because it will disrupt service delivery, threaten
life or put the security of the public at risk. The legislature
has
specifically enacted safeguards to prevent disruption of service
delivery as a result of the attachment of state assets in
execution
of a judgment. To this extent, the sheriff is given the authority to
reach an agreement with the department concerned
to prevent this
outcome.
[45]
In
addition, a party having a direct and material interest may, before
the attached movable property is sold in execution of the
judgment
debt, apply to the court which granted the order, for a stay. This
provides the opportunity for judicial oversight when
executing
against the property of the state.
[54]
This is consistent with the common law power of the court to regulate
its own process, also in relation to the execution of its
judgments.
Grounds for granting a stay include the severe disruption of service
delivery, threat to life or the interests of justice.
[55]
In other words, while essential corporeal movables (such as
ambulances and dialysis machines) and state bank accounts may be
attached,
a stay may be granted in appropriate circumstances.
[56]
There is, in addition, in-built protection in s 3(8) of the Act: in
the absence of an application for a stay, the sheriff may only
remove
and sell the attached movable property after the expiration of 30
days from the date of attachment.
[46]
The process of attachment of incorporeal
movables is also not inconsistent with the prescripts of, and the
framework created by
s 3 for execution against the movable property
owned by the state. The attachment of a judgement debtor’s
right to monies
in a banking account is authorised by Uniform Rule
45(8). It provides that an attachment of an incorporeal right is only
complete
when the sheriff has given notice of the attachment to all
interested parties, and has taken possession of the writing or
document
that evidences the judgement debtor’s ownership of the
right. The requirements for a complete and effective attachment of

the right in a banking account are not inconsistent with the process
of execution prescribed by section 3 of the Act in that they:
(a)
allow the sheriff not to remove the
attached property immediately;
(b)
enable the sheriff and the relevant state
or provincial department to instead agree on the property to be
attached, removed and
sold in execution;
(c)
do not immediately deprive the relevant
department of its use of the property, avoiding the potential for the
disruption of service
delivery obligations; and
(d)
provide for the sale of the right of the
judgement debtor at a sale in execution to the highest bidder as
envisaged in section 3
of the Act.
Provided that the monies
standing to the credit of a state or provincial department are
capable of being identified as monies which
are being ‘used’
by the department concerned, in that it had been appropriated to the
vote of that department, an attachment
as envisaged in Uniform Rule
45(8) accordingly does not appear to conflict with the framework
provided by s 3 of the Act.
Is the attachment of a
state bank account inconsistent with section 226 of the Constitution?
[47]
The
Departments also argued that the attachment of state bank accounts is
inconsistent with s 226 of the Constitution and unconstitutional.

Section 226 establishes Provincial Revenue Funds and provides that
money may be withdrawn from these funds only:
[57]
(a)
in terms of an appropriation by a
provincial Act; or
(b)
as a direct charge against the Provincial
Revenue Fund, when it is provided for in the Constitution or a
provincial Act.
[48]
At
the outset, it must be noted that the applicants’ reliance on
Minister
of Finance v Golden Arrow Bus Services (Pty) Ltd
[58]
appears to be misplaced. In that matter, an amount of over R90
million was due to the respondent in terms of an agreement. The

respondent instituted motion proceedings seeking, inter alia, the
following order:
[59]
‘
That
the amount … be paid to the applicant … from the
National Revenue Fund, in accordance with the provisions of
section 3
of the
State Liability Act …’
[49
]
It
is in that context that the Supreme Court of Appeal remarked that
orders or decisions of courts were unlikely to constitute ‘direct

charges’ against the National Revenue Fund or Provincial
Revenue Fund.
[60]
[50]
It
may be accepted that the Provincial Revenue Fund is paid its share of
the revenue raised nationally,
[61]
and that these funds are then allocated amongst the various
provincial departments by way of an appropriation by a provincial
Act.
[62]
There is nothing
untoward in this. As the Constitutional Court noted in
Tsoga
,
an annual
Appropriation Act is
passed by the relevant legislature at
both national and provincial levels, the purpose being to provide for
the appropriation of
money from the relevant revenue fund for the
financial requirements of the State or Province. The typical preamble
to an
Appropriation Act
[63
]
specifically references the provisions of s 226 of the Constitution
and s 26 of the PFMA as justification for the appropriation
of money
for the financial year to satisfy the requirements of the Province.
Appropriation Acts further reference budgetary votes
and contain
schedules detailing estimates of provincial revenue and spending and
the amounts allocated to the various provincial
departments for the
year in question. The provisions of the PFMA are satisfied in that
all money received by the provincial government
is paid into the
Provincial Revenue Fund, and the money which makes its way to
departmental sub-accounts follows appropriation
by a provincial Act
in this manner.
[64]
[51]
The
court was informed that the bank account in question had been closed
despite the attachment.
[65]
Leaving aside that reality, it appears as if Ikamva issued a writ for
the attachment of funds already appropriated to a bank account
held
by the second applicant. Those funds formed part of the voted funds
for the department, as defined by the PFMA. Permitting
a departmental
bank account to be attached in this way is dissimilar to a direct
charge or attachment against the Provincial Revenue
Fund itself, and
is not constitutionally impermissible.
[52]
Section
3(11)
(f)
of
the Act supports this interpretation. It confirms that provincial
treasury may satisfy any outstanding final order on behalf
of a
department, record this and debit the amount against the appropriated
budget of the department concerned. The third applicant’s

argument that this was ‘practically impossible’ cannot be
accepted.
[66]
In
Tsoga
the lawfulness of a writ of execution flowing from an order granted
pursuant to a settlement agreement was in issue. An amount
of over
R30 million, held in a bank account in the name of the Department of
Public Works, was attached in terms of the writ.
[67]
That amount was paid to Tsoga Developers CC once an urgent
application seeking interim relief to halt the execution process
failed.
The applicants sought an order for repayment of those funds.
[53]
The
Constitutional Court left open the question whether the attachment of
a government bank account and the resultant transfer of
funds from it
constitute a withdrawal from the Provincial Revenue Fund, or a direct
charge against that Fund, which is proscribed
by s 226 of the
Constitution.
[68]
This despite
the attached amount being in an account held by the Department of
Public Works. It raised, without deciding, the question
whether once
monies are placed in an account held by a government department they
have not, in fact, already been appropriated
to that department as
envisaged in s 226(2)
(a)
.
[54]
As
indicated above, s 3(3)
(b)(
ii)
of the Act provides that payment of a judgment debt by an accounting
officer of a department ‘must be charged against
the
appropriated
budget
of the department concerned’.
[69]
It is unclear how funds held in a departmental bank account, which
must be accepted to constitute an ‘appropriated budget’,

as detailed above, are unavailable for attachment on the basis of the
s 226 argument.
[70]
This is
precisely what prompted Madlanga J in
Tsoga
to remark: ‘If payment is expected to be from an “appropriated”
budget, how is it that funds held under the same
budget are somehow
no longer “appropriated” and thus no longer available for
attachment, as the applicants appear to
contend?’ In all these
circumstances, the s 226 argument is untenable.
The 2016 notices of
attachment
[55]
Ikamva
issued a writ of attachment in respect of movable property on 11
March 2016, directing the Sheriff to ‘attach and take
into
execution the movable goods of the MEC for Department of Public
Works, and the MEC for Department of Health’ to realise
the sum
of the default judgment. While there is no application to set aside
this writ,
[71]
the sheriff’s
notices of attachment in response thereto are challenged.
[56]
The Sheriff issued notices of attachment,
including inventories, in respect of both departments on 11 March
2016. The inventories
list ‘All office furniture and related
office equipment and vehicles of (each) Department … ’
linked to specific
buildings in Bhisho. The returns of service are
couched in identical terms.
[57]
At first blush, it may appear as if the
Sheriff’s response to the writ contravenes Uniform Rule 45(3).
That rule provides,
in part, that property that is pointed out or
found during the execution process ‘ … shall be
immediately inventoried
and, unless the execution creditor shall
otherwise have directed … shall be taken into the custody of
the sheriff …
’ The inventories in question clearly fail
to provide specificity as to the property attached. This is the nub
of the Departments’
complaint, as formulated in its notice of
motion. It is also clear that the property was never taken into the
sheriff’s custody.
[58]
The reason for the sheriff’s approach
is explained in his affidavit. He explains the existence of an
agreement with the departments
in Bhisho. A long-standing practice
exists that the assets are attached ‘in broad terms’.
This implies that there is
a blanket attachment of all office
furniture and related office equipment and vehicles of the department
concerned, without the
need to identify any specific items or to list
each and every item attached. This obviates the need to locate
departmental vehicles,
which could be anywhere within the province at
any given time. Should payment still not be made, a further
instruction is required
before the attached property will be removed
and sold. The department will, in that instance, be contacted so that
individual motor
vehicles may be identified (by the department) for
removal. Those vehicles will then be placed in a large governmental
parking
lot in Bhisho, to be removed by the sheriff. At that stage,
the vehicles will be fully identified and a notice of removal will be

prepared and supplied to the department and the plaintiff, recording
the identity of each of the removed vehicles. A date for sale,
as
well as the necessary advertisements, will be arranged thereafter.
[59]
The Departments do not seriously contest
the existence of this practice, stating only that they have no
knowledge as to the practice’s
origin and with whom agreement
was reached, and that insufficient particularity has been provided.
It must be accepted that the
process described by the sheriff has
been in existence for several years and stands as the general
practice. The approach is sensible,
and apparently designed to lower
the costs of execution, provide departments with additional time to
make payment and include the
departments in the process of
determining which movables may be sold.
[60]
The
Departments seemingly accepted the technical manner of the sheriff’s
attachments for five years, while proceeding with
various attempts to
stay further execution. To now raise the issue of non-compliance with
the strict formalities of Uniform Rule
45(3), in circumstances where
a functional procedural deviation has developed in conjunction with
governmental departments, is
dilatory and opportunistic. This finding
is fortified by those authorities that explain that a long delay in
applying to set aside
a writ, may be a bar to relief, as is
acquiescence.
[72]
This
effectively also disposes of the Departments’ submission that
an excessive amount of movable property had been attached
by the
Sheriff in 2016. It is, furthermore, notable that Uniform Rules 45(3)
and 45(6) contemplate an execution creditor permitting
inventoried
goods to remain where they are and directing the sheriff not to
remove the goods.
[61]
In
any event, if a writ is issued for too large an amount, the whole
writ will not be set aside in the absence of substantial prejudice
to
the debtor.
[73]
The attached
movables, including the vehicles, were never removed in terms of the
arrangement that had developed. No such instruction
was ever received
from the judgment creditor until 2021, by which time the amount due,
including interest, appears to have been
at least double the default
judgment amount. No substantial prejudice to the Departments has been
demonstrated. The proper course
would, in any event, be to amend the
writ to the correct amount.
[74]
The second writ
[62]
At
the time the urgent application for the stay of the first writ was
argued before Lowe J (on 9 March 2021), the vehicles and movables

which had been attached in 2016 had not been removed, a date for the
sale had not been arranged and there was no suggestion that
the
removal of the vehicles was imminent. Ikamva issued the second writ
on 10 March 2021, after that application was struck from
the roll.
The sheriff was directed ‘to attach and take into execution
sufficient funds in the Department of Health’s
Standard Bank
Account … to cause to be realised the sum of R41 031 279,58
… plus interest thereon at the
rate of 15,5% per annum from 18
August 2008, limited in terms of the in duplum rule to a further sum
of R41 031 279,58
… in accordance with the judgment
… plus interest on the sum of R41 031 279,58 …
at the then prevailing
legal rate of interest of 15,5% per annum
calculated with effect from the 19
th
May 2016 …’
[75]
[63]
The next day, five years to the day after
the first writ had been issued, matters came to a head. The sheriff /
deputy sheriff issued
a ‘notice of attachment in execution in
incorporeal property or incorporeal rights in property (Rule
45(12)
(a)
read with Rule 45(8)
(c)
)’,
including an inventory. The inventory portion of this notice provided
as follows:
‘
The
amount attached … is to remain in the account until payment
thereof is demanded from you by the Sheriff … You
are under no
circumstances allowed to release the said amount interdicted by this
attachment or to effect payment thereof to any
party without the
prior written instructions from this office. The attachment will only
be complete as soon as payment of the amounts
specified in the Writ
of Execution have been demanded from the Defendant or his / her
representative and a copy of the Writ of
Execution and the Notice of
Attachment have been served on the Defendant.’
[64]
The Deputy Sheriff also demanded the
release of 800 vehicles from the Departments’ officials on 11
March 2021. Following correspondence,
the sheriff provided the
Departments with a copy of the first writ, the corresponding notices
of attachment and returns of service.
The Departments’ legal
representative raised section 3(7) of the Act in response and the
prospect of service delivery disruption
and the like.
[65]
Correspondence from the sheriff’s
office on 12 March 2021 clarifies that Ikamva had demanded removal of
ten vehicles of the
first applicant on the afternoon of 10 March
2021. In so far as the second writ and corresponding notice of
attachment, this had
been served on 12 March 2021 and ‘the
Sheriff’s Office will have to wait 30 days before removing’.
[66]
The Departments initially challenged the
second writ on the basis that it amounted to a ‘freezing’
of the bank account
concerned. This submission was jettisoned before
argument. The bank account was not frozen but the second writ would
not be satisfied
until that account was placed in a positive balance.
[67]
The Departments also challenged the second
writ because of the existence of the first writ. That writ already
provided for two attachments
for R42 million each. The Departments’
argument was that Ikamva had effectively caused the sheriff to attach
an excessive
amount of movable property (corporeal and incorporeal)
by issuing the second writ.
[68]
The
issue relating to the bank account attachment had morphed by time the
matter was argued. An affidavit submitted by Mr Msulwa
Daca, the
Chief Financial Officer of the Department of Health, Eastern Cape
Province, explained that all provincial departments
run their bank
accounts as subsidiary accounts to the main Provincial Treasury bank
account.
[76]
An open tender
process determines which bank will hold the accounts for a period of
five years. When the five-year contract with
Standard Bank ended,
Provincial Treasury awarded the contract to ABSA Bank, with effect
from 1 May 2021. All Provincial departments
were forced to take steps
to close their respective Standard Bank accounts and move these to
ABSA Bank. The Department of Health’s
Standard Bank account was
effectively closed around July 2021. The result of this development
is that, for all practical purposes,
the writ of execution dated 10
March 2021, and the subsequent attachment of the account, was no
longer effective. As Mr Daca noted,
‘the anticipated outcome of
this, is that all creditors with unsatisfied judgments against the
Department of Health, who
wish to pursue execution against the
Department, will now have to issue writs of attachment against the
ABSA bank account’.
[69]
These developments suggest that the issue
of the attachment made in terms of the second writ has been rendered
moot. It would certainly
serve no purpose to set aside the writ or to
order the release of the bank account attachment when that account
has already been
closed and the funds seemingly removed
notwithstanding the attachment. In these circumstances, it is
unnecessary for us to grant
any specific relief in relation to this
matter. Given that Ikamva might well proceed to attach the
Departments’ new bank
account in a similar manner, however, the
issue of the validity of the writ in the form in which it was issued,
and the consequent
manner in which the attachment was made, requires
comment.
[70]
This
judgment has found that incorporeal movable assets belonging to the
Departments may be executed against, and that the attachment
of a
state bank account is not inconsistent with s 226 of the
Constitution. As indicated above, a judgment debtor is not always

entitled to have an issued writ set aside on the basis that it
reflects an inflated or excessive amount which is owed. Proof of

actual prejudice suffered because of the issue of the exorbitant writ
is required.
[77]
In
Mbhele
NO v Smith
,
[78]
the Court found that it was probable that the warrant reflected an
amount which was more than that due by the applicant. It found,

however, that the applicant had failed to show substantial prejudice
on the papers:
‘
61.
An averment in appellant’s affidavit to the effect that the
furniture attached is her exclusive property and that she
needs the
same is, in my view, a self-evident prejudice which is not
contemplated by the law as constituting substantial prejudice
for the
purpose of setting aside the warrant. (See
Dunlow
Rubber Co v Stander
(
supra
)
where the court found that the fact that the judgment debtor had to
pay the full amount of the writ, although he owed less, in
order to
escape arrest, did not constitute substantial or the element of
prejudice required.)
62. In circumstances
where the writ includes an amount which is not due and payable, the
law is that the proper course of action
is to have the warrant
amended to the extent of reducing or adjusting the sum reflected to
the correct one…
63. In the present matter
there was no application for the amendment of the warrant before the
magistrate, as the appellant’s
case was that she was not
indebted to the respondent in any amount whatsoever. Had she tendered
payment of the amount which was
legally owing to the respondent the
position could, most probably, have been different.’
[71]
As
in
Mbhele
NO
v
Smith
,
there is no application for amendment and the court does not have
sufficient material before it to engage in the mathematical
exercise
of identifying the correct amount due.
[79]
There is also no actual tender to pay the amount the Departments
claim is due to Ikamva. Substantial prejudice has not been
demonstrated
and the application cannot succeed on this basis.
[72]
But there is another more obvious reason
why the writ and the attachment made pursuant thereto cannot stand. A
writ for the attachment
of movable property belonging to the
judgement debtor is issued in terms of Uniform Rule 45(1). The rule
provides that a party
in whose favour any judgement of the court has
been pronounced may, at its own risk, sue out of the office of the
registrar one
or more writs against the movable property of the
judgement debtor corresponding substantially with Form 18 of the
First Schedule.
Form 18 directs the Sheriff to ‘attach and take
into execution the movable goods of the judgment debtor’ to be
realised
by public auction for the sum of the judgment debt. The
second writ was over-specific in terms of the movable property to be
attached,
directing the sheriff to attach only the department bank
account. As such it does not correspond substantially with Form 18 of
the First Schedule to the Uniform Rules and contravenes Uniform Rule
45(1).
[73]
Put
differently, the purpose of Uniform Rule 45(8) is simply to authorise
attachment of a particular class of property (incorporeal
rights)
where the judgment creditor previously first had to obtain the leave
of the court to execute against such property,
[80]
and to regulate the way incorporeal rights are attached. What it does
not do, is to give the judgement creditor the right to choose
which
of the judgement debtor’s movable property must be attached by
the sheriff. The rule, in other words, does not serve
as authority
for the judgement creditor to choose to only attach a particular
incorporeal right belonging to the judgement debtor,
and to authorise
the registrar to issue a writ that limits the authority of the
sheriff to the attachment of specific movable incorporeal
property.
Subrule (8) cannot derogate from the issuing of a writ as envisaged
in subrule (1), in substantial compliance with Form
18.
[74]
In addition, Uniform Rule 45 requires
several consecutive steps for the valid attachment in execution of
the movable property of
a judgement debtor. The most important being:
(a)
The
issue of a valid writ of execution;
[81]
(b)
A demand that the writ be satisfied;
(c)
If
not satisfied, a demand that the judgement debtor point out
sufficient movable and disposable property, failing which the sheriff

is authorised to search for such property;
[82]
(d)
The
making of an inventory
[83]
of
the goods;
(e)
Subject
to Uniform Rules 45(3) and (5), the sheriff shall take the movables
into custody;
[84]
(f)
The
making of a return of the manner of execution;
[85]
(g)
If the judgment debtor does not give an
undertaking, and unless the execution creditor directs otherwise, the
sheriff shall remove
the goods to a convenient place of security or
keep possession thereof on the premises where they were seized;
(h)
Notice of sale to be forwarded at least 15
days before the date of sale; and
(i)
The sale of the property attached at a sale
in execution.
[75]
The
writ is the source of the sheriff’s authority for all actions
taken pursuant to the writ.
[86]
The sheriff derives authority to act from the writ itself and enjoys
no residual authority. The manner in which the writ was framed
in
this instance undoubtedly contributed to the sheriff failing to
comply with the proper process during execution. As indicated,
the
sheriff in this case was ‘
Directed
to attach and take into execution sufficient funds in the Department
of Health’s Standard Bank account’ (own emphasis)
and
proceeded accordingly. There is no suggestion that the department was
afforded the opportunity, in terms of Uniform Rule 45(3),
to point
out sufficient movable property, other than the bank account, to
satisfy the writ. A judgement debtor should not be deprived
of this
opportunity before the sheriff searches for property and proceeds to
attach so much of the judgment debtor’s movables
as is
sufficient to satisfy the writ.
[76]
This interpretation is supported by s
3(7)
(b)
of
the Act. The sheriff should operate in a way that is cognisant of the
option of agreeing in writing with a department official
on movable
property owned by the State and used by the department concerned that
may not be attached, removed and sold in execution
because of the
effect this will have on service delivery, public security or life.
Couching a writ in an over-specific fashion
to refer to particular
movable property is likely to contribute to the sheriff ignoring this
option in communications with the
judgment debtor, in possible
contravention of s 3(7)
(b)
of
the Act. As already indicated, the purpose of s 3(7), and s 3(10) of
the Act, is to avoid the attachment of property that may
inter alia
disrupt the statutory and constitutional obligations of the
department in question to provide services to the public.
Issuing a
writ in a prescriptive way has the potential to obstruct that
objective.
[77]
There
is a more technical reason for the invalidity of the actual
attachment made by the sheriff on the writ. The return of service

indicates that the sheriff executed the writ in terms of ‘Rule
45(8)(
c
)
read with Rule 45(12)(
a
)’.
The difficulty with this attachment is that the two subrules are
mutually exclusive. The former provides for the attachment
of ‘other’
incorporeal rights, which in the present context would have been the
Department of Health’s right
to the monies standing to its
credit in its banking account. Importantly, this subrule does not
envisage the attachment of actual
monies but rather the right to the
money in the bank account. Like any movable property that is
attached, the right must be realised
by its sale at a sale in
execution. This subrule does not place any obligation on the bank in
question to pay actual monies to
either the sheriff or the judgment
creditor. As Caney J explained in
Ormerod
v Deputy Sheriff, Durban
:
[87]
‘
The
legal relationship between a banking institution and its customer
whose account with it is in credit is that of debtor and creditor;

although the customer “deposits” money to the credit of
his account with the bank, the transaction is not one of depositum,

but of loan without interest…The customer is a creditor who
has a claim against the bank in the sense that he has a right
to have
it make payments to him, or to his order, on cheques drawn by him up
to the amount by which his account is in credit…The
question
for determination is by what process a judgment creditor may resort
to execution upon any such claim or right on the part
of his judgment
debtor.
It follows that in the
present instance there is no question of attaching money; what the
applicant wishes is to attach and sell
the claims, that is to say the
rights of action, which the judgment debtors have against the banks.
These are movable incorporeal
property.’
[78]
Instead, payment of actual monies is
exactly what is contemplated by Uniform Rule 45(12). The procedure
created by this subrule
is not that of an attachment followed by the
sale of the attached property at a sale in execution. It creates a
garnishee procedure,
dealing with execution against debts which are
accruing to the judgment debtor.
[79]
The
legal relationship between a bank and a customer whose account is in
credit, is that of a debtor and a creditor.
[88]
The credit balance of the customer’s account may accordingly be
the subject of a garnishee order, and capable of an attachment
as
contemplated in subrule (12). The subrule obliges the debtor of the
judgment debtor, referred to as ‘the garnishee’
to pay
the amount it owes to the judgment debtor directly to the judgment
creditor. Payment by the garnishee operates as a discharge
pro
tanto
of the garnishee’s obligation to the judgment debtor. Should
the garnishee refuse or fail to comply with a notice delivered
to it
by the sheriff requiring payment by the garnishee to the sheriff, the
sheriff must notify the judgment creditor, who may
then call the
garnishee to appear before court to show cause why he should not be
ordered to make payment to the sheriff. An attachment
in terms of
subrule (12) does not envisage the sale of the right that underlies
the debt owing or accruing by way of a sale in
execution.
[80]
Attachments
in terms of subrules (8) and (12) are, therefore, clearly distinct.
The sheriff’s return and the notice delivered
to the bank in
this matter indicate execution of the writ in terms of the latter
subrule, despite the reference to the former.
The sheriff refers to
monies held to the credit of the Department of Health by the
‘garnishee’. A subsequent letter
demanded payment of the
amount attached by a specified date into his bank account. This is
completely inconsistent with an attachment
made under subrule (8)
which envisage a sale in execution of the attached right. Such an
attachment would only be complete once
the sheriff has taken
possession of the writing or document that evidences ownership of the
property or the right, and requires
notice to all interested
parties.
[89]
Should execution be
stayed?
[81]
Courts
enjoy an inherent discretion to set aside or order a stay of a sale
in execution, at least prior to the completion of the
execution
procedure:
[90]
‘
Execution
is a process of the Court, and I think the Court must have an
inherent power to control its own process subject to such
rules as
they are…the discretion must, I think, still be in the Court
to stay the use of its process where “real and
substantial
justice” requires such stay, where injustice would otherwise be
caused.’
[91]
[82]
Court’s
enjoy constitutionally-supported inherent jurisdiction to control
their own processes, taking into account the interests
of
justice.
[92]
It appears as if
this inherent discretion operates independently of the provisions of
Uniform Rule 45A.
[93]
Execution must generally be allowed.
[94]
This is so even in cases where a stay is sought pending the
determination of proceedings still to be instituted.
[95]
Courts will generally grant a stay of execution if the applicant
demonstrates that real and substantial justice requires this or
where
an injustice will result if execution proceeds.
[96]
The court’s discretion must be exercised judicially, but cannot
otherwise be limited.
[97]
[83]
Waglay
J considered the requirements for a stay, and the relevant
authorities, in some detail in
Gois
t/a Shakespeare’s Pub v Van Zyl
.
[98]
That judgment noted that some cases consider the requirements for an
interim interdict as part of the test to determine an application
for
a stay. Framing the test in that way was not entirely appropriate,
especially where an applicant was not asserting a right,
but seeking
an indulgence on the grounds that execution might result in an
injustice.
[99]
This view is
consistent with the approach in
Road
Accident Fund v Strydom
,
[100]
and supported in
BP
Southern Africa (Pty) Ltd
.
[101]
[84]
The learned judge proceeded to summarise
the general principles for the granting of a stay in execution as
follows:
(a)
The court will be guided by considering the
factors usually applicable to interim interdicts, except where the
applicant is not
asserting a right, but attempting to avert
injustice;
(b)
The court must be satisfied that:
i.
The applicant has a well-grounded
apprehension that the execution is taking place at the instance of
the respondent; and
ii.
Irreparable harm will result if the
execution is not stayed and the applicant ultimately succeeds in
establishing a clear right.
(c)
Irreparable harm will invariably result if
there is a possibility that the underlying causa may ultimately be
removed because it
is the subject-matter of an ongoing dispute
between the parties.
(d)
The court is not concerned with the merits
of the underlying dispute – the sole enquiry is simply whether
the causa is in
dispute.
[85]
Hard
and fast rules circumscribing a court’s discretion to order a
stay are to be avoided. There are, nonetheless, lessons
to be gleaned
from previous cases. The judgment of Nestadt J in
Soja
(Pty) Ltd v Tuckers Land and Development Corporation (Pty) Ltd and
Another
,
[102]
for example, has been hailed as ‘a classic case of how a
judicial discretion is exercised judicially’:
‘
This
brings me to the issue of whether I should exercise my discretion in
applicant’s favour. It is in the interest of justice
that
applicant retain the opportunity of showing that the judgment
appealed against is incorrect. The prejudice to the applicant
if the
sale proceeds and its right to appeal frustrated, is manifest. The
appeal is due to be heard in about three weeks. The first
respondent
will suffer no substantial prejudice if the sale be stayed,
particularly when it is borne in mind that it has done without
this
particular form of execution for some 16 months.’
[86]
In
Whitfield
,
Nepgen J placed particular emphasis on the prejudice to the
respondent, or lack thereof, if the sale in execution was
stayed:
[103]
‘
Further
considerations supporting the exercise of my discretion in favour of
the applicant are that the matter has now been re-enrolled
for
hearing on 26 November 1992 and that the respondent will suffer no
substantial prejudice if the sale in execution is stayed,
bearing in
mind particularly the lengthy period that elapsed before the
respondent did anything in connection with the costs order
granted in
his favour, while the prejudice to the applicant would be very
substantial indeed if I do not come to his assistance…’
[87]
Courts
will generally grant a stay of execution where the underlying causa
of the judgment debt is being disputed.
[104]
Strime
involved a stay of execution of a writ pending an application for a
reduction or cancellation of an obligation to pay maintenance.
While
there was no suggestion that the causa of the respondent’s
judgment claim was in dispute, and no mention of ‘irreparable

harm’, there was a possibility that the judgment debt might be
expunged pursuant to a retrospective cancellation of the maintenance

order by the Maintenance Court.
[105]
The court granted the stay notwithstanding that it was not in a
position, and in fact considered it inappropriate, to assess the

applicant’s prospects of success in the pending maintenance
application.
[106]
[88]
This
is different to the approach in
Cooper
v Feinstein
.
[107]
In that matter it was considered appropriate to borrow from the
factors for the granting of an interim interdict in determining

whether to suspend a writ of execution. The court noted that this was
not a general rule, and correctly indicated that circumstances
would
dictate whether a stay was appropriate.
[108]
The judgment therefore accords with the statement in
Gois
that the factors for an interim interdict would be inapposite where
the applicant was not seeking to exercise a right but ‘attempting

to avert injustice’, as in the present application.
[89]
In
BP Southern
Africa (Pty) Ltd
, an attempt to
interdict the execution of a judgment, pending the outcome of a
petition for leave to appeal, failed on the basis
that no protectable
interest had been established. The court nevertheless considered
whether execution should be suspended in the
interests of justice,
either in terms of Uniform Rule 45A or based on the inherent
jurisdiction of the court.
[90]
The
Constitutional Court in
Tsoga
dealt with stay of execution in a single paragraph and expressed
support for
Cooper
,
framing the need to establish a prima facie right as an absolute
requirement:
[109]
‘
It
goes without saying that the applicant for the stay of execution must
demonstrate that the proposed claim has prospects of success.

Otherwise, what would the point of the stay be? In Cooper the Court
held that the applicant must show a prima facie right…’
[91]
Does
this statement overtake the developments that resulted in a
distinction in cases where an applicant seeks to avert injustice?
In
our view, the present matter is distinguishable, and reliance on the
approach in
Gois
remains appropriate. It is significant that the limited remarks
regarding a stay of execution in
Tsoga
appear in the context of considering whether leave to appeal should
be granted against an interim order of execution. As indicated,
that
matter considered the setting aside of a settlement agreement in
circumstances where an order of court had been granted pursuant
to
the agreement and remained unchallenged. The issue of a stay arose
only tangentially in
Tsoga
:
the applicants raised a potential future claim in the sum of R8,8
million as the basis for staying the execution of the order
based on
the settlement agreement.
[110]
There was a paucity of detail about the possible future claim.
[111]
At best for Ikamva,
Tsoga
stands as authority for the following: an applicant who seeks a stay
of execution pending finalisation of a future claim, yet to
be
instituted, must demonstrate that the proposed claim has prospects of
success.
[112]
The present
matter, in which a stay is sought pending final consideration of a
petition for leave to appeal, and any consequent
appeals to the
self-review proceedings already launched, is very different.
[92]
We were informed on 16 February 2022 that
the Departments’ application for leave to appeal to the SCA
against the Beshe J
judgment has lapsed. In response to a directive,
the Departments’ explained that its instructing attorney had
regrettably
not complied with an order of the SCA by failing to file
additional copies of the application for leave to appeal with that
court.
An application for condonation has since been filed, together
with the requisite copies. While the appeal has lapsed, the
condonation
and re-instatement application form part of the appeal
proceedings and are matters to be considered by the SCA and, if
further
appeal is pursued, the Constitutional Court. As a result, the
lapsed appeal does not affect the position regarding the alternative

relief sought.
[93]
Ultimately,
the circumstances favour a stay of execution of the 2016 attachments
pending finalisation of the self-review process.
The Departments are
not, in the present matter, asserting a right, but attempting to
prevent an injustice. As such, this court
need not consider factors
that are applicable for purposes of interim interdicts.
[113]
This means that there is no need for the court to comment on whether
the self-review application has any prospects of success.
[114]
Ikamva is clearly desperate to execute. Irreparable harm will result
if execution is not stayed, if some of the money paid to Ikamva
is
dissipated and the Departments ultimately succeed in the self-review.
Ikamva may, for example, become insolvent or funds could
be moved to
third parties and become difficult to trace. The amount in question
is significant and there is at least a possibility
that the
underlying causa may ultimately be removed. These factors also
justify the urgency with which the matter was launched.
Arriving at
this conclusion does not require the Rugunanan AJ order to be
interpreted along these lines. That Ikamva has agreed
on previous
occasions to stay the execution of the writ is peripheral, as is the
interest that accrues in its favour and the guarantee
furnished by
the Departments in terms of the PFMA. It is clear in any event that
Ikamva’s claim is adequately secured and
there is little danger
that it will not be paid in full once the Departments’ appeal
processes are exhausted.
[115]
Costs
[94]
The applicants have been successful in
respect of the alternative relief sought in this application and are
entitled to their costs,
including the costs of two counsel where
employed. Ikamva is responsible for these costs, including its
attempts to oppose the
intervention by the third applicant, the
filing of a notice of irregular proceedings and the costs of the
hearing of 5 August 2021.
The applicants should not, however, benefit
from the presentation to the court of ‘the Majiki J bundle’
and ‘the
SCA bundle’ of documents, which were of limited
assistance.
[95]
It is unfortunately also necessary to
comment on Ikamva’s conduct in addressing issues raised in
directives of this court.
A supplementary affidavit filed by Ikamva’s
managing member suggesting that this court had unjustifiably
descended into the
arena. In addition, an answering affidavit filed
by Ikamva’s attorney of record, in an application for leave to
appeal before
the SCA, took umbrage at the ‘questionable
propriety’ of the issues raised
mero
motu
by this court and suggested that
the ‘intervention’ of the Judge President of the Division
should be ‘subject
to scrutiny’. This court was even
threatened with an application for recusal unless the legal points
raised were withdrawn.
[96]
In
fact, this court raised issues foreshadowed in the papers. The
Departments’ main prayer related to the invalidity of notices

of attachment and a writ of attachment of a bank account. That must
include consideration of whether a valid, competent order of
court
underpinned the execution process. Far from the court improperly
broadening the issues to be determined, these matters were
important
in the context of a multimillion rand claim against the Departments
and required full ventilation. In
CUSA
v Tao Ying Metal Industries
,
[116]
the court state:
‘
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged, mero motu,
to raise the point of law and require the parties
to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe
the principle of
legality.’
[97]
The Judge President did nothing other than
constitute a full bench for a matter, upon the request of Tokota J,
in circumstances
where the dispute was clearly of sufficient
complexity to warrant this. This was triggered by consideration of
the implications
of attachment of a state department bank account,
and because the Constitutional Court had left the issue open in
Tsoga
. In
doing so, the Judge President acted in terms of Rule 19
(d)
of the Joint Rules of Practice for the Division, and because of the
nature of the issues at hand. No objection was raised at the
time by
Ikamva, who were seemingly aware that the Judge President had
appeared as counsel in the matter some years previously.
[98]
The conduct and tone of Ikamva’s
objections to these routine matters borders on contempt and
undermines respect for the judiciary.
The suggestion that this court
conducted itself in a way that was somehow part and parcel of an
attempt to apply pressure in order
to influence Ikamva to accept
payment of a lesser sum in damages borders on paranoia and is
manifestly unfounded and scandalous.
[99]
It
is most unfortunate that Ikamva’s legal representatives
permitted the threat of recusal to be recorded in an affidavit
based
on incorrect facts and assumptions.
[117]
It goes without saying that no recusal application was ever brought.
It must be expected that legal practitioners, as officers
of the
court, will act proactively in protecting the dignity of the court,
even if this proves to be unpopular with their clients.
That
expectation is heightened when the court has the benefit of being
addressed by senior counsel. The proper administration of
justice
depends on the preservation of the court’s dignity and the
suppression of wild sentiments and woolly criticism by
all
role-players. The judiciary is not above scrutiny or reproach but
should not be the victim of unwarranted attacks. Legal practitioners,
au
fait
with the ethical standards of the Bench, the Code of Judicial Conduct
and the Norms and Standards for the Performance of Judicial

Functions, should be the first to ensure that the judiciary remains
respected and protected. This is irrespective of whether there
is a
sense that the court has adopted an unfavourable prima facie view on
the matter.
[100]
In the circumstances, it is appropriate for
Ikamva to pay costs on an attorney and client scale in respect of the
filing of its
supplementary and confirmatory affidavits dated 21 July
2021 and addendums, as well as the applicants’ affidavit in
answer
to this supplementary affidavit, dated 28 July 2021, and
addendums.
Order
[101]
The following order will issue:
(a)
The intervening party is given leave to
intervene in the matter as the third applicant.
(b)
The further execution of the writs of
attachment dated 11 March 2016, including the removal of the attached
movables, is stayed
pending the final determination of the
application for leave to appeal the order of Beshe J dated 16
February 2021 (case number
2610/2019), including any consequent
appeals.
(c)
The first respondent is to pay the costs of
the application, including the costs of the application for
intervention, the costs
occasioned by the Rule 30 applications dated
22 June 2021 and 30 July 2021 and the reserved costs of the hearing
of the application
on 5 August 2021, such costs to include the costs
of two counsel where so employed, but excluding any costs associated
with the
presentation of the ‘Majiki J bundle’ and ‘the
SCA bundle’ to the court.
(d)
The costs of the first respondent’s
supplementary and confirmatory affidavits dated 21 July 2021 and the
applicants’
answering affidavit dated 28 July 2021 are to be
paid by the first respondent on the attorney and client scale.
D.
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
B.
TOKOTA
JUDGE
OF THE HIGH COURT
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
5
August 2021
and 18 October 2021
Delivered:
17 March 2022
Appearances:
For
the First and Second Applicants:     Adv M.A. Albertus
SC and Adv S. Sephton
Instructed
by:

Mgangatho Attorneys
Makhanda
046 622 2602
Ashely.Basson@emlaw.co.za
For
the Third Applicant:

Adv T. Ngcukaitobi SC and Adv R. Schoeman
Instructed
by:

State Attorney
East London
043 706 5100
Email:
SMgujulwa@justice.gov.za
For
the First Respondent:

Adv J.C. Smuts SC and Adv G. Dugmore SC
Instructed
by:

Stirk Yazberk Attorneys
East London
043 726 8310
Email:Karen@stirkyazbek.co.za
[1]
The
order by agreement reads as follows:
‘
1.
The present application be and is hereby postponed sine die in order
to enable the applicants to take whatever steps they deem
meet to
finalise the application for leave to appeal and / or an application
for rescission, and the status quo in respect of
the issue of
execution on the judgment of Malusi AJ shall remain in place.
2.
In the event of the Respondent being successful in due course the
applicants agree and undertake to pay interest on the sum
owing to
the Respondent in terms of the Order of Malusi AJ as from 19 May
2016 until date of payment, at the legal rate applicable
to the
judgment of Malusi AJ.
3.
It is recorded that the aforegoing is without prejudice to the
entitlement of the respondent to argue any defence otherwise

applicable to it, and without any concession of the entitlement of
the applicants to take any steps to challenge, delay or avoid,
the
judgment debt reflected in the order of Malusi AJ.
4.
The agreement is also entered into without prejudice to the rights
of the applicants, who do not concede that they are entitled
to the
relief as requested in this interim application (sic).
5.
Applicants are to pay the wasted costs consequent upon today’s
postponement and including the costs of two counsel and
including
their preparation, and all remaining costs are reserved for
determination at a later stage.’
[2]
The
pertinent portion of the Order reads as follows: ‘That pending
the determination of the relief sought in Part B, no
further
execution will take place under the writ of execution dated 11
th
March 2016.’ Reference to the ‘Part B’ relief
relates to the self-review application. The Departments submit
that
the intention of the agreement was that execution should be
suspended until the final determination of the self-review
application, which must include all possible appeals.
[3]
In
the alternative, the third applicant also claimed suspension of any
writ of execution or attachment pending finalisation of
the appeal
in the Beshe J application.
[4]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA);
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
2017 (5) SA 1
(CC) para 9. Also see
Gordon
v Department of Health, Kwazulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) para 9.
[5]
Act 20 of 1957.
[6]
The
Directive was framed as follows: ‘2.1 Did Majiki J have
jurisdiction in terms of Rule 35(7) to make the order of 11
November
2011 striking out the defendant’s defence, and if not, is the
order not a nullity as envisaged in
Master
of the High Court Northern Gauteng High Court, Pretoria v Motala
2012 (3) SA 325
(SCA) (‘
Motala
’)?
2.2
To what extent, if at all, would the invalidity of the order of
Majiki J (if found to be invalid), affect the validity of
the order
of Malusi J dated 1 December 2015?
2.3
Should it be found that the order of Malusi J is also invalid, must
it be given effect to by execution against the property
of the
judgment debtor?
2.4
With reference to foreign jurisdictions, the Constitution, the
Public Finance Management Act No. 1 of 1999
and the Regulations
published in terms thereof, does the scheme of the
State Liability
Act at
all permit the attachment of State monies in the execution of
a money judgment?’
[7]
Reported as
Ikamva
Architects CC v MEC for the Department of Public Works and Another
[2014]
ZAECGHC 70 (‘the Plasket judgment’).
The
typical order provides that in the event of non-compliance by the
defendants the plaintiff may apply for their defence to
be struck
out on the same papers, amplified if necessary. An application for
leave to appeal this judgment to the Supreme Court
of Appeal failed
for want of prospects of success.
[8]
Paras
24, 26 of the Plasket J judgment. The court went on to provide
guidance for courts of first instance about the consequences
of
defences being struck automatically, in the form of an obiter dicta:
paras 27 et seq. As part of this obiter dicta, Plasket
J expressed
his doubts that an order striking out a defence automatically was
competent, deliberately refraining from expressing
a firm view on
the point.
[9]
Para
32.
[10]
Para
31.
[11]
Motala
op
cit fn 6 paras 11-13;
City
of Johannesburg v Changing Tides 74 (Pty) Ltd & Others
2012
(6) SA 294
(SCA);
Moriatis
Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and Others
2017
(5) SA 508
(SCA) at fn 4;
Minister
of Rural Development and Land Reform v Normandien Farms (Pty) Ltd
and Others, Mathibane and Others v Normandien Farms
(Pty) Ltd and
Others
2019
(1) SA 154
(SCA) at para 53; and
Travelex
Limiter v Maloney
[2015] ZASCA 128.
[12]
An
insightful discussion of the topic can be found in MN de Beer
‘Invalid Court Orders’
Constitutional
Court Review
(2019) vol 9 283-315.
[13]
See
Government
of the Republic of South Africa v Von Abo
2011 (5) SA 262
(SCA) para 18, holding that a second order arising
in consequence of a first order would be legally untenable if the
first order
was wrong in law.
[14]
Ikamva
Architects v MEC for the Department of Public Works and Another
op
cit fn 7 para 29.
[15]
Leask
v East Cape Forest Products CC t/a Highburg Treated Timbers
[2008]
ZAECHC 171.
See also the unreported judgment of Revelas J in
Sebata
Municipal Solutions (Pty) Ltd v Nelson Mandela Bay Municipality
(566/2020) (delivered on 23 March 2021).
[16]
O’ Regan J in
Giddey
NO v JC Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC) para 16.
[17]
In
the context of discovery, it will serve very little purpose to
strike out a defence if the documents the plaintiff requires
have no
relevance to the issues raised, and if there is no real likelihood
of trial prejudice to the plaintiff. To make such
a determination,
the court will require facts to be placed before it to justify such
an order, with the other party given the
opportunity to respond.
Failing that process, it can hardly be said that the court had
judicially exercised its discretion as
mandated by the Rule.
[18]
Uniform
Rule 27(3).
[19]
This
opportunity would have been afforded if Ikamva had followed a
two-stage process as envisaged by Uniform
Rule 35(7).
[20]
Promedia
Drukkers & Uitgawers (Edms) Bpk v Kaimowitz and Others
1996
(4) SA 411
(C) at 417G-I (references omitted).
[21]
Motala
op
cit fn 6. Also see
MEC
for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd
2014
(3) SA 481
(CC) fn 78.
[22]
See
Government
of the Republic of South Africa v Von Abo
2011 (5) SA 262
(SCA) para 18 and
Multichoice
Support Services (Pty) Ltd v Calvin Electronics t/a/ Botaria Trading
and Another
[2020]
ZASCA 143
para 12.
[23]
Jurisdiction
in this context means the power, competence or authority vested in a
court by law to take cognisance, adjudicate
upon, determine and
dispose of the issues raised before it, and to give effect to its
judgment:
Steytler
NO v Fitzgerald
1911 AD 295
at 346-347 and
Yeneta
Mineraria Spa v Carolina Colliers
(Pty)
Ltd
1987
(4) SA 883
(A) at 893F.
[24]
For
criticism of the decision in
Motala
op
cit fn 6, see the majority judgment in
Department
of Transport and Others v Tasima (Pty) Ltd
2017 (2) SA 622
(CC) (‘
Tasima
’).
[25]
Provincial
Government: North West Province v Tsoga Developers CC
2016
(5) BCLR 687
(CC) (‘
Tsoga
’).
[26]
Tasima
op
cit fn 24 para 197.
[27]
See
Tasima
ibid
para 190-191.
[28]
Tasima
ibid
para 182.
[29]
Tasima
ibid
para 192;
Tsoga
op cit fn 25 para 52.
[30]
See
Tasima
op cit fn 24 para 183: “So, in the current case, the Mabuse J
order…was enforceable immediately after it was issued.
This
finding vindicates the constitutionally prescribed authority of the
courts. The obligation to obey court orders “has
at its heart
the very effectiveness and legitimacy of the judicial system”.
Allowing parties to ignore court orders would
shake the foundations
of the law, and compromise the status and constitutional mandate of
the courts. The duty to obey court
orders is the stanchion around
which a state founded on the supremacy of the Constitution and the
rule of law is built.’
(references omitted). Also see
Meadow
Glen Home Owners Association v City of Tshwane Metropolitan
Municipality
2015 (2) SA 413
(SCA) para 8.
[31]
The
history of this Act has been described in
Nyathi
v Member of the Executive Council for the Department of Health,
Gauteng and another
[2008] ZACC 8
(‘
Nyathi
’)
para 16
et
seq
.
[32]
The
section was substituted, following the decisions of the
Constitutional Court in
Nyathi
op cit fn 31 by s 2 of Act No. 14 of 2011.
[33]
Tasima
op
cit fn 24 para 188.
[34]
S
3(2).
[35]
S
3(3)(
a
).
It is the accounting officer of the department concerned that must
make payment in terms of such order within the time period

specified: s 3(3)(
b
)(i).
Such payment must be charged against the appropriated budget of the
department concerned: s 3(3)(
b
)(ii).
‘Appropriated budget’ is defined in s 4A of the Act to
mean ‘the budget of a department which is appropriated
in
terms of appropriation legislation in the annual budget or an
adjustments budget’.
[36]
In
terms of the definition of ‘final court order’ in
section 4A of the Act, an order is final if given or confirmed
by a
court of final instance or otherwise becomes final after expiry of
the period within which an appeal to a higher court may
be lodged.
[37]
S
3(4).
[38]
The
voted funds of the department consists of the total amount which is
appropriated for a specific department in an appropriated
act. See s
1 of the Public Finance Management Act, 1999 (Act 1 of 1999)(‘the
PFMA’).
[39]
S
3(5). S 3(11) adds the following:
‘
In
order to comply with its obligations in terms of subsection (5), and
in general to ensure that final court orders are satisfied
by
departments without any delay, the relevant treasury may –
(a)
make or issue appropriate regulations,
instructions, circulares, guidelines and reporting rules;
(b)
issue a direction to a department to
make a payment in order to satisfy any outstanding final court
order;
(c)
conduct an investigation, inspection
or review into any failure by a department to pay any outstanding
final court orders;
(d)
issue an instruction to take remedial
action or to obtain specified support, where –
i.
there has been non-compliance by a
department with the provisions of this section, or regulations,
instructions, circulars, guidelines
or directions made or issued by
the relevant treasury; or
ii.
there is a need for intervention in view
of the financial, governance or management situation, condition or
failure of a department;
(e)
withhold from a department’s
voted funds sufficient funds to provide for the satisfaction of any
outstanding final court
order against a department, which funds may
only be released to the department upon the submission of proof
acceptable to the
relevant treasury that the court order in question
has been satisfied;
(f)
satisfy any outstanding final court
order on behalf of a department, which satisfaction must be recorded
and debited against the
appropriated budget of the department
concerned; or
(g)
debit the costs associated with the
satisfaction of a final court order provided for in paragraph (f),
an administration charge
and a penalty from the appropriated budget
of the department concerned.
[40]
S
3(6).
[41]
Ibid.
[42]
Ibid.
[43]
Execution
is a process of the court and the court has the inherent power to
regulate its own process, subject to the Uniform Rules
of Court.
This includes the discretion, derived from common law, to set aside
or stay a writ of execution:
Stime
v Stime
1983
(4) SA 850
(C) at 852A.
[44]
S
3(9) provides that ‘Subject to this Act, the Rules of Court,
where applicable, apply to the issuing of a writ of execution
…
and the attachment, removal and sale of movable property in
execution of a judgment debt against the State.’
[45]
S
3(6).
[46]
Uniform
Rule
45(8)
(c)
provides
that: ‘If incorporeal property whether movable or immovable,
is available for attachment, it may be attached without
the
necessity of a prior application to court in the manner hereinafter
provided:…
(c)
in the case of the attachment of all other
incorporeal property or incorporeal rights in property as aforesaid,
(i)
the attachment shall only be complete when –
(a)
notice of the attachment has been given in
writing by the sheriff to all interested parties…and
(b)
the sheriff shall have taken possession of the
writing or document evidencing the ownership of such property or
right, or shall
have certified that he has been unable, despite
diligent search, to obtain possession of the writing or document.’
Also
see
Ormerod v Deputy Sheriff, Durban
1965 (4) SA 670
(D) at
673.
[47]
National
Joint Municipal Pension Fund v Enduweni Municipality
2012
(4) SA 593
(SCA) para 19.
[48]
See
Nyathi
op
cit fn 31 para 40.
[49]
Ex
parte Master of the Supreme Court
1906
T.S. 563
at 566. See
Ormerod
op cit fn 46 at 674C-F.
[50]
Nyathi
op
cit fn 31 para 39 et seq. Section 8(1) of the Constitution provides
that the Bill of Rights applies to all law, and binds the

legislature, the executive, the judiciary and all organs of state.
The right to equality before the law and the right to equal

protection and benefit of the law is guaranteed by section 9.
Section 34 guarantees everyone the right to have any dispute that

can be resolved by the application of law decided in a fair public
hearing before a court. Section 165(5) provides that ‘an
order
or decision issued by a court binds all persons to whom and organs
of state to which it applies’.
[51]
Mjeni v
Minister of Health and Welfare, Eastern Cape
2000 (4) SA 446
(Tk) at 452G-H and 453C-D, quoted with approval in
Nyathi
op cit fn 31 para 43.
[52]
See
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
[2001] ZACC 8.
[53]
See
the remarks of Madlanga J in
Tsoga
op
cit fn 25 para 25: ‘…as
section 3(6)
of the
State
Liability Act undoubtedly
sanctions the attachment of movables like
motor vehicles, machinery, office furniture, computers and other
office equipment and
fittings, the effect might well be the same if
an international creditor owed vast sums of money were to attach
virtually all
these categories of the State’s movable assets.
The question then is: is there much in seeking to draw a distinction
between
sanctioning the attachment of State monies, on the one hand,
and movables other than money, on the other?’
[54]
See
Member
of the Executive Council for Health and Social Development, Gauteng
v DZ obo WZ
2018 (1) SA 335
(CC) para 86.
[55]
S
3(10)
(a)
of
the Act.
[56]
See
Minister
of Justice and Constitutional Development v Nyathi
2010 (4) SA 567
(CC) (‘
Nyathi
2
’).
[57]
S
226(2) of the Constitution.
[58]
Minister
of Finance v Golden Arrow Bus Services (Pty) Ltd
[2010]
2 All SA 237 (SCA).
[59]
Ibid
para
4.
[60]
Ibid
para 15.
[61]
As
the third applicant’s founding affidavit in the intervention
application (‘the Majeke affdavit’) clarifies
(para 51),
this is the ‘corporation for public deposits account’
referred to in terms of section 4(3) of the 2021
Division of Revenue
Act, which
accommodates deposits only and permits no withdrawals.
The Eastern cape appropriates their equitable share amongst its ten
provincial
departments.’
[62]
This
is confirmed by paras 61 and 62 of the Majeke affidavit. Contrary to
the suggestion that ‘the Second Applicant’s

appropriation situated in this [PMG] account has been attached by
the third writ (para 60 of the Majeke affidavit), the correct

position appears to be that ‘The money attached by the third
writ was appropriated to the Second Applicant by the EC Provincial

Legislature to enable it to carry out its constitutional mandate’:
para 62 of the Majeke affidavit.
[63]
See,
for example, Eastern Cape Appropriation Act 3 of 2020.
[64]
S21(3)
of the PFMA provides: ‘A provincial treasury must establish
appropriate and effective cash management and banking
arrangements
for its Provincial Revenue Fund in accordance with the framework
that must be prescribed in terms of section 7.’
‘Prescribe’
is defined to mean ‘prescribe by regulation’: s 1 of the
PFMA. Regulation 15(2) provides
that each Provincial Revenue Fund
must have a bank account configuration that consists of at least an
Exchequer bank account
and a Paymaster-General bank account. If a
department requires a separate bank account, the relevant treasury
may approve one
sub-account within the Paymaster-General account of
the relevant revenue fund. The sub-account remains an integral part
of the
bank account configuration of the relevant revenue fund: see
Tsoga
op cit fn 25 para 17.
[65]
The
reason advanced for this is that Provincial Treasury awarded a
contract to hold all Provincial bank accounts to ABSA Bank
with
effect from 1 May 2021: index at p 549.
[66]
Majeke
affidavit: para 69.
[67]
Tsoga
op
cit fn 25 para 1.
[68]
Section
226 of the Constitution provides:
“
(1)
There is a Provincial Revenue Fund for each province into which all
money received by the provincial government
must be paid, except
money reasonably excluded by an Act of Parliament.
(2)
Money may be withdrawn from a Provincial Revenue Fund only –
(a)
in terms of an appropriation by a provincial Act; or
(b)
as a direct charge against the Provincial Revenue Fund, when it is
provided for in the Constitution
or a provincial Act.”
[69]
Own
emphasis.
[70]
This
is precisely the question posed in
Tsoga
op
cit fn 25, prior to the Constitutional Court deciding that it was
not in the interests of justice to grant leave in respect
of the s
226 argument: para 24, fn 22. The Constitutional Court also left
open the question whether it serves to draw any distinction
between
sanctioning the attachment of State monies, on the one hand, and
movables other than money, on the other: para 25.
[71]
As
indicated above, an application to set aside the writ was launched
on 17 March 2016. It was subsequently postponed sine die
by
agreement before Hartle J on 19 May 2016 and has seemingly not been
resuscitated.
[72]
D Van Loggerenberg
Erasmus
Superior Court Practice
RS 16 (2021) D1-606.
[73]
Dunlop
Rubber Co v Stander
1924
CPD 431.
[74]
Ibid.
Also see
Mbhele
NO v Smith
[2009] ZAFSHC 86
para 62.
[75]
Standard Bank, was served with the second writ and notice of
attachment on 11 March 2021. It received correspondence from the

sheriff on 15 March 2021 indicating the total due as
R123 102 142,57. A recalculation was provided by the
sheriff
on 17 March 2021, reflecting the amount due as
R113 504 195,49.
[76]
P
547-553 of the index.
[77]
Dunlop
Rubber Co v Stander
op
cit fn 73 as cited in
Mbhele
NO v Smith
op
cit fn 74 para 58.
[78]
Mbhele
v Smith
ibid.
[79]
Mbhele
NO v Smith
ibid
paras 64, 67. Also see
H
v H and Another
[2014] ZAWCHC 100
para 24.
[80]
Suliman
and Another v Volkskas Bpk
1956
(2) SA 474
(T) and
Lutuli
v Hirsch
1956 (2) SA 586 (W).
[81]
Nedbank
Ltd v Norton
1987
(3) SA 619
(N) at 621G.
[82]
Nedbank
Ltd v Norton
ibid
at 621J-622K.
[83]
Rule
45(3).
[84]
In
terms of Uniform Rule 45(8)(
c
)(i)(
b
),
it is not obligatory for the sheriff to make an inventory of a right
attached in terms of the subrule.
[85]
Uniform
Rule
45(4).
[86]
Weeks
and Another v Amalgamated Agencies Ltd
1920
AD 218
at 225.
[87]
Ormerod
v Deputy Sheriff, Durban
1965
(4) SA 670
(D) at 673C-H, quoted with approval in
Burg
Trailers SA (Pty) Ltd v ABSA Bank Ltd
2004 (1) SA 284
(SCA) para 6.
[88]
The legal relationship between a banking institution and its
customer whose account with it is in credit is that of a debtor
and
creditor; although the customer ‘deposits’ money to the
credit of its account with the bank, the transaction
is not one of
depositum
,
but of loan without interest. See
White
v Standard Bank
[1900] LKCA 1
;
(1983) 4 N.L.R 88
pp 91-92. The customer is a creditor who has a
claim against the bank in the sense that she has a right to have it
make payments
to her, or to her order, on cheques drawn by her up to
the amount by which her account is in credit. See
Estate
Ismail v Barclays Bank
1957
(4) SA 17
(T) at 26.
[89]
Uniform
Rule 45(8)
(c)
(i).
[90]
Whitfield
v Van Aarde
1993
(1) SA 332
(E) at 337E-F.
[91]
Graham
v Graham
1950
(1) SA 655
(T) at 658.
[92]
S
173 of the Constitution.
[93]
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
2011
(4) SA 149
(SCA) para 51-52. It has also been suggested that the
wording of Uniform Rule 45A, albeit prior to the 2020 substitution,
was
intended to be a restatement of the courts’ common law
discretionary power, which is an instance of the courts’
authority
to regulate its own process:
Stoffberg
NO and Another v Capital Harvest (Pty) Ltd
[2021]
ZAWCHC 37
para 26. In
BP
Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and
another and a similar matter
2022
(1) SA 162
(GJ), De Villiers AJ noted that an application for a stay
in terms of Uniform Rule 45A and a cause of action based on an
interim
interdict would often overlap, but that the former had wider
application to prevent injustices: para 8.
[94]
Strime
v Strime
1983
(4) SA 850
(C) at 852A-B.
[95]
Tsoga
op
cit fn 25 para 54.
[96]
Strime
v Strime
op
cit fn 94.
[97]
Whitfield
v Van Aarde
op
cit fn 90 at 337F-G.
[98]
Gois
t/a Shakespeare’s Pub v Van Zyl
(2011)
1 SA 148
(LC).
[99]
Gois
t/a Shakespeare’s Pub v Van Zyl
ibid
para
33.
[100]
Road
Accident Fund v Strydom
2001
(1) SA 292 (C).
[101]
BP
Southern Africa (Pty) Ltd v
v
Mega Burst Oils and Fuels (Pty) Ltd and another and a similar matter
op
cit fn 93 para 21.
[102]
Soja
(Pty) Ltd v Tuckers Land and Development Corporation (Pty) Ltd and
Another
1981
(2) SA 407
(W) at 411B as cited in
Whitfield
v Van Aarde
op
cit fn 90 at 339B.
[103]
Whitfield
v Van Aarde
op
cit fn 90 at 340A-B.
[104]
Tyres
2000 (Jetpark) (SA) (Pty) Ltd v Central African Road Services (Pty)
Ltd
[2017]
ZAGPJHC 325 para 8. Also see
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
op
cit fn 93 para 52: ‘A court will grant a stay of execution in
terms of Uniform Rule 45A where the underlying causa of
a judgment
debt is being disputed, or no longer exists, or when an attempt is
made to use the levying of execution for ulterior
purposes.’
[105]
Stoffberg
NO and another v Capital Harvest (Pty) Ltd
op
cit fn 93 para 23. This possibility was considered to be a
significant factor in the exercise of a discretion to grant the
stay
in
Strime
v Strime
op
cit fn 94: see
Le
Roux v Yskor Landgoed (Edms) Bpk
1984 (4) SA 252 (T).
[106]
Also
see
Erasmus
v Sentraalwes Koöperasie Bpk
[1997] 4 All SA 303
(O) at 307-308.
[107]
Cooper
v Feinstein
[2005]
ZAWCHC 28
para 18.
[108]
Cooper
v Feinstein
ibid
at paras 18, 19.
[109]
Tsoga
op
cit fn 25 para 54 (references omitted).
[110]
Tsoga
op
cit fn 25 para 12.
[111]
Tsoga
op
cit fn 25 para 54.
[112]
Ibid.
[113]
Gois
t/a Shakespeare’s Pub v Van Zyl
op
cit fn 98 at para 40.
[114]
Ibid.
[115]
Stoffberg
NO
and
Another v Capital Harvest (Pty) Ltd
op cit fn 93
para
27.
[116]
CUSA
v Tao Ying Metal Industries
[2008] ZACC 15
;
2009
(2) SA 204
(CC) para 68.
[117]
Para
63 of the First Respondent’s supplementary affidavit, dated 21
July 2021, at p 583 of the index.