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[2022] ZAECMKHC 85
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N.S.B v A.F.B (260/2019) [2022] ZAECMKHC 85 (25 October 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MAKHANDA]
CASE NO.: 260/2019
In the matter between: -
N[....]
S[....]
B[....]
APPLICANT
and
A[....]
F[....]
B[....]
RESPONDENT
JUDGMENT
NORMAN J:
[1]
This is an application wherein the applicant seeks an order declaring
executable an
immovable property situate at [....] A[....]2 Street
(“the property”), Makhanda. The applicant further seeks
an order
that a writ of execution be issued as envisaged in terms of
Rule 46 (1) (a) of the Uniform Rules of Court. The applicant and the
respondent were divorced from each other on 12 July 2016. They
entered into a settlement agreement resolving all issues relating
to,
inter alia,
parental obligations in relation to their minor
child and
proprietary
rights.
[2]
It is also common cause that the respondent was found to be in
contempt of court on,
at least two occasions, in separate proceedings
that emanated from his non-compliance with some of the divorce
related orders as
contained in the settlement agreement. He was not
successful in seeking leave to appeal before the Supreme Court of
Appeal and
the Constitutional Court.
[3]
The long history of litigation between the parties is dealt with
comprehensively in
the contempt of court judgments of Jolwana J and
Mfenyana AJ and I do not deem it necessary to repeat it herein. Mr
Brown appeared
for the applicant and Mr B[....] appeared in person.
Condonation
application
[4]
The applicant sought condonation for the late filing of the
supplementary replying
affidavit which attached the rates account in
respect of the property from the Makana Municipality. The account
reflected that
the property in question was in arrears in the amount
of R95 209.13. It further reflected the property value to be
R1 502 900.00.
The application for condonation was opposed
by Mr B[....] on the basis that the applicant sought to raise a new
issue in reply
and that should not be allowed. I have considered all
the arguments in this regard and I am of the view that placing the
rates account before court, is not a new issue and does not
advance the case of the applicant, instead, it is the information
that
the court is obliged to consider in an application of this
nature. The information relating to rates and property valuations are
matters germane to the considerations where a relief of this nature
is sought
.
The applicant tendered a
plausible explanation for not placing the updated information before
court earlier. I find that there is
no prejudice suffered by the
respondent as a result of the late filing of that information. I
accordingly grant condonation and
I allow the supplementary affidavit
together with the
annexures
thereto to
form part of the evidence before me. I make no order as to costs.
The merits
[5]
The order sought herein is as a result of the respondent’s
failure to satisfy
a debt caused by a taxed bill of costs in the
amount of R215 404.49. The respondent accepted that he is
indebted to the applicant
for those costs. Subsequent thereto a writ
of execution was issued.
[6
]
On 8 July 2021 at 16h19 the
Sheriff’s return of service recorded, amongst others, that the
respondent has a notice of motion
interdict to oppose the writ and he
claimed that he instituted legal proceedings in that regard. He
attached the respondent’s
office equipment and the respondent
said it belonged to the business. He attached the VW Tiguan with
registration number [....]
and the respondent indicated that it
belonged to the bank.
[7]
On 05 August 2021, the registrar re- issued
a writ directing the sheriff to attach and take into execution
the
movable goods of the respondent at [....] A[....]2 Street,
Grahamstown. The applicant contends that the sheriff has not been
able to execute the writ on the property as the respondent did not
allow him access to the property. She submitted that she is
registered as a 50 % joint owner of the property. She submitted that
no reason exists why the property should not be declared executable.
[8]
The respondent applied for the stay of the writ of execution pending
the application for
leave to appeal against
the
contempt of court
decision before
the Constitutional Court. As aforementioned, leave was refused by the
Constitutional Court on 13 October 2021. On
21 October 2021 the
respondent withdrew the application for the stay of the writ.
[9]
On 02 December 2021, the sheriff executed the writ. In his return of
service, he recorded
the following:
“
WARRANT
OF EXECUTION: MOVABLE PROPERTY
ON THE 2
ND
DAY OF DECEMBER 2021 AT 10H30 TO 13H00, I SHERIFF REMOVED THE VEHICLE
VW TIGUAN WITH REGISTRATION NUMBER [....] FROM THE DEFENDANT
TO
SHERIFF’S CUSTODY.
AT 14H30 TO 15H00
VEHICLE HAS BEEN RELEASED INSTRUCTION FROM ATTORNEYS DUE TO
INTERPLEADER (BELONG TO COMPANY).
Signed: Sheriff: S
W NTSHOKOMA.”
[10]
On the same day, the sheriff issued another return of service. It
reads:
“
Address
as specified: 100 HIGH STREET, GRAHAMSTOWN
WARRANT OF
EXECUTION AGAINST PROPERTY
RETURN OF SERVICE:
PERSONAL SERVICE: NULLA BONA
ON 2
ND
day of December 2021 at 10h30 I served this WARRANT OF EXECUTION:
MOVABLE PROPERTY as follows:
After explaining
the nature and content of this document, I demanded from the
DEFENDANT at the above address the amount of R215 404
.49 and my
costs in satisfaction of this writ. The DEFENDANT informed me that HE
has no money or disposable assets or property
inter alia wherewith to
satisfy this Warrant or any portion thereof. No moveable assets or
disposable property were either pointed
out or could be found by me
after a diligent search.
NB: ATTEMPTED
EXECUTION MADE – 28/10/21 – PREMISES FOUND LOCKED
ATTEMPTED EXECUTION
MADE – 10/11/21 – PREMISES FOUND LOCKED
ATTEMPTED EXECUTION
MADE – 18/11 /21 – PREMISES FOUND LOCKED
Signed: SHERIFF: SW
NTSHOKOMA”
[11]
On 3 December 2021, the Registrar issued a writ, directing the
sheriff to attach and take into execution
the sum of R215 404.49,
together with interest thereon at the legal rate per annum as from
the 8
th
July 2021 to date of payment in respect of taxed costs and charges in
terms of the order dated 15 January 2019. In terms of that
writ the
sheriff was directed to attach and take into execution the
incorporeal property, being the right, title and interest in
and to
the respondent’s shares in Billegro Legal Costs Consultants
(Pty) Ltd ((2013/013549/07), a private company with address
53
A[....]3 Street, Makhanda.
[12]
On 10 December 2021, the deputy sheriff, Mr Sydney Gesha filed a
return of service recording:
“
On
the 10
th
of December 2021, at 11h05, I tried to serve the attached WRIT upon
Mr A[....] F[....] B[....] at 53 A[....]3 Street, Grahamstown.
I was
unable to effect service as the share certificate could not be found
at the registered address of Billegro.
DEPUTY SHERIFF
Signed: Sydney Gesha “
[13]
The respondent opposed the application on the basis that he has
released the applicant from the bond
obligations because he paid an
amount of R547 000.00 due to the bondholder. He has limited his
opposition to two main grounds,
first, that the applicant has failed
to comply with the mandatory provisions of rule 45(1). Second, he
contended that he resides
at the property. He submitted that he has a
live-in domestic worker from King Williams Town who lives permanently
at the property
with her granddaughter, a toddler, who is two years
old. He denied that the sheriff, Mr Ntshokoma, demanded payment from
him. He
confirmed that, the sheriff, Mr Gesha demanded payment from
him on 08 July 2021
and he advised Mr Gesha that there
were proceedings underway to interdict the execution.
[14]
He confirmed that on 02 December 2021, the sheriff, Mr Ntshokoma
visited his workplace armed with a writ
of attachment of a vehicle,
the VW Tiguan. The sheriff advised him that he was acting on
instructions of the applicant’s
attorney of record. He demanded
the keys. He arranged for a towing truck and removed the vehicle. The
respondent prepared an interpleader
affidavit on behalf of the owner
of the vehicle, Billegro Legal Costs Consultants (Pty) Ltd, as its
Director. Later, on the same
day, the sheriff released the vehicle to
him. He denied that the sheriff demanded payment because the
sheriff’s focus was
on the vehicle. He denied that he had
refused the sheriff access to the property as stated by the
applicant. He prayed for the
dismissal of the application with costs.
Applicant’s
argument
[15]
Mr Brown submitted that the respondent has failed to point out
movable assets to the Sheriff hence
a
nulla
bona
return was filed by the Sheriff. It was further argued that having
regard to and the extent of the orders granted before, the respondent
is a tricky debtor as was found by the Supreme Court of Appeal in
Nkola
v Argent Steel Group (Pty) Ltd
trading
as
Phoenix
Steel
[1]
with
specific reference to paragraph 2 where the court said:
‘
[2]
He proffers no explanation as to why he has not released these assets
in order to pay his admitted liability.
His argument
assumes
that the creditor, Argent, must find these assets and that he is
under no obligation to make them available for execution.’
[16]
Mr Brown further relied on
Silva
v Transcape Transport Consultants and Another and Another
[2]
and also referred to the Nkola judgment at paragraph F page 562 ,
wherein the SCA stated:
‘
Generally
the judgment debtor himself is asked to point out to the person
making the execution the property which he wishes to be
taken and
sold off with a view to the securing of a judgment debt. If he
refuses to do so or does so in a tricky manner or points
out what is
not enough, the court servant himself seizes at his discretion those
things from which the money can most readily be
made up. He does so
up to the limit of the debt. Hence if a debtor should pay a good deal
while the execution is pending fewer
things would have to be sold off
than those which had been originally seized.’
[17]
Wunsch J, held in
Silva judgment
that Rule 45, did not remove
the court’s discretion. He considered that, because the debtor
in the matter had not pointed
out movable property that was available
to satisfy the judgment debt, he had behaved in a tricky manner and
had deliberately frustrated
the creditor’s efforts to obtain
payment. He found as follows at 563 D-E:
‘
This
is pre-eminently a case where the interests of justice do not dictate
that the execution of the judgment should be stayed and
a case where
execution should proceed against the
applicant’s
immovable
properties.’
Respondent’s
submissions
[18]
Mr B[....], on the other hand, submitted that the sheriff could not
have returned an
nulla bona
return on the same day that he had
removed the vehicle. He submitted that the applicant failed to comply
with the mandatory provisions
of Uniform Rule
45(1).
He further contended that the fact that the property is his
residential address wherein he resides with the domestic worker and a
toddler, should
militate
against
granting of the order. He denied that the Sheriff, Mr Ntshokoma
executed the writ in respect of the movables on 2 December
2021. He
further denied that
on 8 July 2021
Mr
Gesha, executed the writ in respect of the movables. He further
contended that both Mr Gesha and Mr Ntshokoma did not take an
inventory of the goods allegedly attached and also failed to give to
him such inventory.
[19]
Relying on
Plascon-Evans
Paints Ltd v Van Rensburg Paints (Pty) Ltd
[3]
the respondent submitted that the respondent’s version of
events should be accepted. He further submitted that Mr Gesha who
executed the writ on 8 July 2021, did not file a confirmatory
affidavit to the applicant’s application. He further submitted
that although Mr Ntshokoma filed a confirmatory affidavit, the facts
he sought to confirm were not borne out by the objective facts.
[20]
In reply, Mr Brown submitted that the respondent, as an officer of
the court, is aware of his
legal obligations, he ought to have
pointed out the movables to the Sheriff. He submitted that the
applicant has made out a case
and that a reasonable reserve price in
the amount of R482 290.87, would be appropriate. He submitted
that this court must
take into account the remarks of Jolwana J, in
his judgment, where he sentenced the respondent in the contempt of
court proceedings
to 6 months imprisonment, wholly suspended for five
years, on condition that the respondent is not found guilty of the
crime of
civil contempt of court committed during the period of
suspension.
Discussion
[21]
I conveyed to the parties that I was mindful of their respective
positions in the matter but
enquired from them, in an effort to put
an end to the litigation, whether it would be appropriate to make
certain orders to resolve
the issue. Both parties agreed. Mr B[....]
suggested that a Directive from court may be an appropriate way to
deal with the matter
where they may be directed to do certain things
within specified time frames.
[22]
After argument I reserved judgment but indicated that I would issue a
Directive. Indeed, on 16
September 2022 I issued a Directive as
follows:
‘
IT IS
DIRECTED THAT:
1.
The parties are directed to make submissions on the following
matters only:
1.1
a reasonable amount to be paid by the Respondent towards the
payment of the debt that is the subject of this application
(R215 404.49);
and
1.2
a payment schedule to be adhered to.
1.3
The parties are directed to discuss the matters raised in
paragraphs 1.1 and 1.2 and submit a joint submission. In the event
that
the parties do not reach agreement on paragraphs 1.1 and 1.2,
they must submit individual submissions, served on each other, by
no
later than 23 September 2022.
1.4
Such submissions must be submitted electronically to Ms Grace
De Villiers, email: GDevilliers@judiciary.org.za
2.
The parties must agree on a date and time (between 20 and 23
September 2022) for the Sheriff to attend to the respondent’s
home at No.[....] A[....]2 Street, Grahamstown, for the purposes of
executing the Writ.
3.
The respondent is directed to point out to the Sheriff all
movable property owned by him for the purposes of executing the writ.
4.
The Sheriff shall compile an inventory, a copy of which must
be made available to the respondent by no later than 16h00 on the day
of execution.
5.
A copy of the inventory must be delivered to this court together
with the return of service within 3 days after date of execution.’
[23]
The parties failed to reach agreement on the issues raised in the
Directive. They each filed
submissions. Upon consideration of those
submissions it became clear to me that it will not be possible to
resolve the issues soon,
but instead, delivery of this judgment would
be delayed unnecessarily. I decided to proceed to hand down the
judgment as I hereby
do.
The
nulla bona return
[24]
The sheriff, as foreshadowed in the preceding paragraphs, issued two
returns on the same day (2 December
2021) in relation to a writ
executed at the exact same time (10h30) and both were in relation to
100 High Street. The one return
relating to the removal of the
vehicle recorded the time as 10h30 to 13h00. It also recorded the
time for the release of the vehicle
(14h30 to 15h00). The
nulla
bona
return lists various dates and times where the premises (100
High Street) were locked. As apparent from the contents thereof,
which
are quoted fully above, the sheriff recorded that the
respondent informed him that he had no money or disposable assets to
satisfy
the warrant. As aforementioned the events recorded on the
nulla bona
return are disputed by the respondent.
[25]
Although it is contended that the respondent had refused to allow the
sheriff access to the property
(No. [....] A[....]2 Street),
there
is no return of service confirming those allegations. Those
allegations are contained in the founding affidavit.
[26]
In an article published in the
Quarterly Law Review for People in
Business
, penned by
Dr Alastair Smith, University of South
Africa
, entitled: “
The finer points of a nulla bona
return “
, Part 4, Volume 13 pages 175-177, where he
analysed a Zimbabwean decision in
NMB Bank Ltd v Selemani
[2005]
JOL 14034
(ZH),
a case that concerned a lawyer in financial
trouble. The author stated that the court focused on the requirement
of the failure
to indicate disposable property, again emphasising a
sentence in Hockly’s Insolvency Law, 6
th
Edition at
27: “
The demand to satisfy the judgment debt must be made of
the debtor or his duly authorised agent, a demand made to some other
party,
e.g, the debtors wife, does not suffice (See: Rodrew (Pty) Ltd
v Rossouw
1975 (3) SA 137
(O)).
To “indicate
property”, the debtor should tell the sheriff what the property
is and where it is with enough particularity
to enable him to attach
and sell it
( Nathan & Co. v Sheonandan 1963 (
1) SA
179
(N).( my emphasis)
For
example, a debtor does not indicate immovable property sufficiently
if he merely states that he has property in a particular
area or
street (R v Tewari
1960 (20 SA 465
(D). In the NMB case, the judge
pointed out that Selemani did not deny telling the sheriff that he
had no assets. All he said was
that the property in his office
belonged to others. He did not indicate he had other means to satisfy
the debt, nor did he indicate
any disposable property. The court
found that as,a practising lawyer, Selemani ought to have known that
him telling the sheriff
he had no disposable assets , he was
declaring himself insolvent.”
[27]
This case is distinguishable from
Selemani
in that , the respondent disputes
the
nulla bona
return because a vehicle was removed by the sheriff on that day. If
the
writ was executed at 10h30 and the
sheriff at the very same time attached and removed a vehicle, that is
not consistent with
a nulla bona
return.
[28
]
When the sheriff demanded the keys to the vehicle, the respondent
handed them over. At that point,
the sheriff had been placed in
possession of a tangible asset and there would have been no basis to
file a
nulla bona
return.
It is a fact that later on that vehicle had to be returned because it
did not belong to the respondent.
[29]
The respondent denied that he conveyed to the sheriff that he had no
disposable property. Mr
Ntshokoma in his confirmatory affidavit does
not deal at all with the attachment of the vehicle and yet he filed a
return of service
relating thereto. Again if the vehicle was attached
at the same time as the respondent was asked to point out movables,
it is inconceivable
that a
nulla bona
return would be
appropriate.
[30]
The sheriff, Mr Ntshokoma has disputed the respondent’s
evidence. He relies on the handwritten
note made by Mr Gesha as the
events of what took place on 2 December 2021. Mr Gesha did not file a
confirmatory affidavit. The
note relied upon by Mr Ntshokoma makes no
reference to the events of 02 December 2021, at all. It recorded the
following: “
On 22/ 10/ 2021, the sheriff demanded payment of
the taxed costs. The Constitutional Court proceedings were only
finalised on 15/10
/2021 when the parties were advised. Payment is
due on 04 /11/2021 being 14 days after finalisation of the Concourt
processes.”
The applicant is not in a position to deny the
respondent’s version as she was not present when the alleged
execution was
undertaken.
Has
the applicant made out a case for the relief sought?
[31]
The applicant seeks an order to declare the property executable. Rule
45 makes provision for various considerations to be taken
into
account before a court can make such an order. It is necessary to
record the provisions of both rules 45 and 46 to the extent
necessary.
“
45
Execution - General and Movables
(1) A judgment creditor
may, at his or her own risk, sue out of the office of the registrar
one or more writs for execution thereof
corresponding substantially
with Form 18 of the First Schedule.
[Subrule (1)
substituted by GN R181 of 28 January 1994 and substituted by GN R981
of 19 November 2010 (wef 24 December 2010).]
(2) No process of
execution shall issue for the levying and raising of any costs
awarded by the court to any party, until they have
been taxed by the
taxing master or agreed to in writing by the party concerned in a
fixed sum: Provided that it shall be competent
to include in a writ
of execution a claim for specified costs already awarded to the
judgment creditor but not then taxed, subject
to due taxation
thereafter, provided further that if such costs shall not have been
taxed and the original bill of costs, duly
allocated, not lodged with
the sheriff before the day of the sale, such costs shall be excluded
from his account and plan of distribution.
[Subrule (2)
amended by GN R2410 of 30 September 1991.]
(3) Whenever by any
process of the court the sheriff is commanded to levy and raise any
sum of money upon the goods of any person,
he shall forthwith himself
or by his assistant proceed to the dwelling-house or place of
employment or business of such person
(unless the judgment creditor
shall give different
instructions regarding the situation of
the assets to be attached), and there-
(a) demand
satisfaction of the writ and, failing satisfaction,
(b) demand that so
much movable and disposable property be pointed out as he may deem
sufficient to satisfy the said writ, and failing
such pointing out,
(c) search for such
property.
Any such property
shall be immediately inventoried and, unless the execution creditor
shall otherwise have directed, and subject
to the provisions of
subrule (5), shall be taken into the custody of the sheriff:
Provided-
(i) that if there
is any claim made by any other person to any such property seized or
about to be seized by the sheriff, then,
if the plaintiff gives the
sheriff an indemnity to his satisfaction to save him harmless from
any loss or damage by reason of the
seizure thereof, the sheriff
shall retain or shall seize, as the case may be, make an inventory of
and keep the said property;
and
(ii) that if
satisfaction of the writ was not demanded from the judgment debtor
personally, the sheriff shall give to the judgment
debtor written
notice of the attachment and a copy of the inventory made by him,
unless his whereabouts are unknown.
[Subrule (3) amended by
GN R2410 of 30 September 1991.]
(4) The sheriff shall
file with the registrar any process with a return of what he has done
thereon, and shall furnish a copy of
such return and inventory to the
party who caused such process to be issued.
[Subrule (4) amended by
GN R2410 of 30 September 1991.]
46
Execution - Immovables
(1) (a) No writ of
execution against the immovable property of any judgment debtor shall
issue until-
(i)
a return shall have been made of any process which may have been
issued against the movable property
of the judgment debtor from which
it appears that the said person has not sufficient movable property
to satisfy the writ; or
(ii)
such immovable property shall have been declared to be especially
executable by the court or, in the
case of a judgment granted in
terms of rule 31 (5), by the registrar: Provided that where the
property sought to be attached is
the primary residence of the
judgment debtor. no writ shall issue unless the court, having
considered all the relevant circumstances,
orders execution against
such property.
(b) A
writ of execution against immovable property shall contain a full
description of the nature and situation
(including the address) of
the immovable property to enable it to be traced and identified by
the sheriff; and shall be accompanied
by sufficient information to
enable him or her to give effect to subrule (3) hereof.
[Subrule (1) amended by
GN R2410 of 30 September 1991 and substituted by GN R981 of 19
November 2010 (wef 24 December 2010).] “
[32]
I must state that there is merit in the objection
by the respondent to the execution of his home. The fact
that there
has been no execution of the movables prior to the relief seeking
execution of the immovable property does not accord
with the
constitutional scheme of our legal system.
The
respondent objected to the process adopted by the Sheriff in
returning a nulla bona return.
[33]
It is trite law that the Sheriff reports to the court hence the
return of service is given the
status of constituting
prima facie
proof in evidence.
[34]
On 13 August 2021 the applicant’s attorneys of record directed
a letter to the Sheriff
where they:
(i)
attached a signed indemnity in terms of Rule 45(3), signed by the
applicant;
(ii)
requested the Sheriff to attach movable assets at the respondent’s
residence being
[....] A[....]2 Street, Grahamstown.
[35]
Most importantly they stated that:
‘
We look forward
to receiving your return of service and a date for the sale of
movables.’
[36]
As indicated above, there is no return of service, proving that the
sheriff visited the property
and executed the writ or was refused
entry. Instead this is contained in the founding affidavit. The
sheriff is obliged to file
a return of service recording his visits
to the property and the reaction to the writ by the respondent.
[37]
The objective facts are that on 2 December 2021 at 10h30 the Sheriff
could not have filed a
nulla bona
return because he, on his
own return of service, had removed a vehicle. It is inconceivable
that at the same time that he removed
the vehicle that he could
simultaneously file a
nulla bona
return. He had executed the
warrant against the vehicle at the same address at the same time in
respect of the same debt.
[38]
In
Lotzof v Raubenheimer
1959 (1) SA 90
(O) the following is
stated on page 94 – D: -
“
From the papers
before me it appears that the respondent was a farmer in the
Ficksburg District, and that as a result of severe
farming losses he
and his wife decided to give up farming and to return to Johannesburg
to seek employment to enable them to pay
off their debts. It is
almost inconceivable that the respondent could
have
carried on
farming operations, albeit unsuccessfully, without any assets. The
prospect that an enquiry may reveal assets which may
be recovered for
the benefit of creditors, is therefore not too remote.
[15] By no means
can it be argued with conviction that the nulla bona return is
perfect. The question is whether the imperfection
of the nulla bona
return is of such a nature that it is defective to the extent that it
is impeachable. The onus is on the respondent
to prove that it is
impeachable. On the version of the respondent, he and Mr. Van Zyl met
on the 20th and 23rd April 2018. The
purpose was to serve the writ or
execution. The assets listed by the respondent is insufficient to
satisfy the judgment debt in
terms of the warrant of execution. The
Sheriff, quite correctly in my view, issued the nulla bona return.
This is an act of insolvency
in terms of section 8 (b) of the
Insolvency Act referred to supra, which will entitle the applicant to
an order of
sequestration albeit provisionally, of the
respondent’s estate. The respondent is factually insolvent.
[39]
The effect of the
nulla bona
return has the effect of, first,
altering the status of a debtor (to that of insolvency) and second,
of encroaching upon a debtor’s
right not to be deprived of
their home or property without due process (declaring immovable
property executable). It is accordingly
a gateway to the debtor
losing his or her residential home. It is for that reason that, a
nulla bona
return may not be perfect but it must be reliable
because of its power to affect one’s constitutional rights. It
must evince
that the sheriff adopted and followed the correct process
of execution prior to him or her returning a nulla bona return. That
process is spelt out in Rule 45 (3) in relation to movables. The
sheriff must demand satisfaction of the writ, demand that so much
movables and disposable property be pointed out. If the debtor fails
to point out movables or disposable property, the sheriff
must search
for such property. Where the sheriff had followed the correct
process, as was the case in the
Nkola judgment,
it is easier
for the court to determine, whether it is dealing with a tricky
debtor or not. I am not able to make that finding
herein. The sheriff
in his confirmatory affidavit made allegations that are completely
different from what is on the nulla bona
return. He stated that what
is contained on the nulla bona return is a true reflection of what
occurred on 2 December 2021. Although
he stated on the return that
‘The
Defendant informed me that HE has no money or
disposable assets or property inter alia wherewith to satisfy this
warrant
. “In his affidavit he said something different. He
stated: “I
served the writ of execution on Mr B[....] at 100
High Street, Makhanda, and demanded payment of the judgment debt. Mr
B[....] refused
to point out any movable assets to me and refused to
sign on the back of the writ which was handed to him
.” I
find that the
nulla bona
return, on the applicant’s
version is unreliable.
In this regard, the
version of the applicant supported by the sheriff is not in line with
the objective facts. I accordingly reject
it.
I am
accordingly, satisfied that the
nulla bona
return, is
not
supported by the objective facts and is defective and thus
impeachable.
[40]
It follows that where the creditor has not excused
[4]
against movables it cannot succeed in the relief sought against
immovable property. This is what is envisaged in rule 46. In this
regard, the order that the applicant seeks against the immovable
property cannot succeed.
Costs
[41]
In so far as costs are concerned both parties submitted that if the
applicant was successful,
she should be entitled to costs on a
punitive scale as it was found by the Constitutional Court in the
Public Protector case
. The respondent also submitted that if
he is successful he should be entitled to costs. I do not have
information at my disposal
that would cause me, in relation to this
application, to depart from the normal rule that costs should follow
the result. I am
also not inclined to grant costs on a punitive scale
because both parties actively participated in this litigation to
protect their
respective rights.
[42]
I accordingly make the following Order:
“
The application
is dismissed with costs.”
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Date
of Hearing
: 15 September 2022
Date
of Delivery
: 25 October 2022
APPEARANCES:
FOR
THE APPLICANT
: Mr Brown
Instructed by:
WHEELDON RUSHMERE & COLE INC.
119 High Street
Makhanda
FOR
THE RESPONDENT :
Mr B[....] (In Person)
Instructed by:
MGANGATHO ATTORNEYS
3 New Street
Makhanda
[1]
[2018]
JOL 40204
(SCA).
[2]
1999
(4) SA 556
(W) @ 563 referred to in Nkola and endorsed in Tirepoint
( Pty ) Ltd v Patrew Transport CC
[2012] JOL 28716
( GSJ)
[3]
1984
(3) SA 628
(A) at 634-635.
[4]
Barclays
Nasionale Bank Bpk v Badenhorst
1973 (1) SA 333
(N)