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[2022] ZAECMHC 6
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Lavelikhwezi Investments (Pty) Ltd and Others v Mzontsundu Trading (Pty) Ltd and Others (1043/2022) [2022] ZAECMHC 6 (12 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTENR
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 1043/2022
In the
matter between:
LAVELIKHWEZI
INVESTMENTS (PTY)
LTD
1
st
Applicant
WANDISILE
SIPHO
MTI
2
nd
Applicant
NOMPILO
MTI
3
rd
Applicant
and
MZONTSUNDU
TRADING (PTY)
LTD
1
st
Respondent
DEN
MZONTSUNDU
DABULA
2
nd
Respondent
YANDISWA
SONAMZI
ATTORNEYS
3
rd
Respondent
YANDISWA
SONAMZI
4
th
Respondent
ADVOCATE
WALTER
SONAMZI
5
th
Respondent
THE
SHERIFF OF THE HIGH COURT:
MTHATHA
6
th
Respondent
JUDGMENT
JOLWANA
J
:
Introduction
[1]
On 4
March 2022 the applicants applied to this Court as a
matter of urgency, for an order suspending the summary judgment and
order previously
issued by the court. Interdictory and other
relief are also sought which appear to be predicated upon the
granting of the
suspension order.
[2]
The matter served before me as a
fully-
fledged
opposed application on the 22 March 2022, all the papers including
heads of argument having been filed. The relief
sought as it
appears from the notice of motion, to the extent that it was still
being pursued, some of it having been conceded
and abandoned, is
couched in the following terms:
“
2.1 That the
first and second respondents, acting through the 6
th
respondent, or anyone for that matter, be and are hereby forthwith
interdicted and restrained from attaching and removing any of
the
applicants’ properties wherever they are found/situated,
pursuant to an order or judgment issued by the above honourable
Court
by the late Judge Dukada AJ being “X” herein.
2.2 That the court order/judgment
issued by the above honourable court by the late honourable Judge
Dukada AJ be and is hereby suspended,
pending the determination by
the court as to how much the 1
st
and 2
nd
applicants should pay to the 1
st
and 2
nd
respondents in instalment terms.
2.3 That the Sheriff of the High
Court, being the 6
th
respondent, be and is hereby
interdicted and restrained from removing the goods and items as
listed under annexure “Z”
herein, being the properties of
the 3
rd
applicant, pending the finalization of the
interpleader proceedings already instituted by the 3
rd
applicant, under case number 3996/2019, forthwith.
…
2.8 That the 6
th
respondent
be and is hereby directed and ordered to return all the goods removed
from the premises of the applicants forthwith;
and restore them to
their original position.
2.9 That the closure of the shop of
the 1
st
applicant by the 6
th
respondent, the
Sheriff being ENGEN, CITY MOTORS situated at Nelson Mandela Drive,
Mthatha be and is hereby declared unlawful,
illegal and of no force
and effect; and the 6
th
respondent be and is hereby
directed to return the keys of the shop with immediate effect.
3. That paragraphs 2.1 and 2.9 shall
operate as an interim relief and mandamus in the applicants’
favour pending the finalization
of this application.”
[3]
The orders which appeared at paragraphs 2.4 to 2.7 of the notice of
motion were conceded and abandoned during the hearing of
the
application before Malusi J before whom the matter initially served.
It later transpired during the hearing of the matter
that he had to
recuse himself for reasons that I need not traverse. When the
matter served before me, there was an attempt
to resuscitate and
revisit the conceded issues on the basis that research was done after
the concessions had been made. I
was taken aback that
concessions made on record because of the probing by the court can
just be sought to be re-argued on the basis
of some later research.
Parties are generally entitled to argue their case. They do not
have to concede when they believe
they have a case to argue. If
a concession is made, that should be the end of the matter. What
the court does with
the concession is a different matter as the court
is not bound by the concession in its assessment and evaluation of
the case,
as a general principle.
[4]
I shall henceforth refer to the first and second applicants as “the
applicants” and the first and second respondents
as “the
respondents” these parties being the main protagonists in the
swell of litigation that has been taking place
between the parties,
at times at the Supreme Court of Appeal and even the Constitutional
Court. Reference to a specific applicant
or respondent will be
made only where I consider it necessary to do so in a specific
context.
[5]
This application is fraught with many difficulties which will be
pointed out in the course of the judgment. The atrocious
manner
in which the applicants’ papers were drafted with some pie in
the sky relief being sought in totally inappropriate
proceedings
deserves special mention. Some of the relief ended up being
abandoned at the hearing of this matter in circumstances
where that
relief should never have been sought having neither hope of being
granted nor merit warranting their pursuit.
Simply put, the
applicants’ approach to this Court both on urgency and merits
was, on the facts of this matter, both misguided
and
ill-advised.
One does not often encounter the level of carelessness in the
drafting of court papers as was evident herein.
Background
[6]
I consider it useful for a better appreciation of the issues and the
dynamism that characterized this matter that I give a background
to
these proceedings which I hope will contextualize the motley issues
that find expression herein. On 18 August 2020 Dukada
AJ
granted a summary judgment in favour of the respondents against the
applicants in the sum of just over ten million rand.
In that
judgment it is recorded that in March 2016 the applicants and the
respondents concluded an oral agreement of sale of a
business being a
garage referred to as City Motors
t
rading
as
Lavelikhwezi (Pty) Ltd. An
acknowledgment of debt was signed by the applicants in respect of the
said transaction,
inter alia
, acknowledging receipt of the
payment of a deposit in the sum of R10 156 568.56.
[7]
The court found that at the time the acknowledgment of debt was
signed the said amount had already been paid in full to the
second
applicant. Apparently, the sale of business fell through which
resulted in the action being instituted by the respondents
against
the applicants for the repayment of the aforesaid amount of money.
Summary judgment was granted against the applicants
in the sum of
R10 156 568.56 together with interest thereon at the
prevailing legal rate calculated from 31 October 2018
to date of
payment. This, after the applicants defended the action and the
respondents applied for summary judgment against
them.
[8]
Having obtained summary judgment, the respondents were delayed in
executing against applicants’ properties for some time
for
different reasons some of which are mentioned herein. First,
there was an application for leave to appeal against the
judgment and
order of Dukada AJ which was refused on 30 September 2020. On
22 February 2021 the Supreme Court of Appeal dismissed
an application
for leave to appeal to it. On 30 April 2021 the Supreme Court
of Appeal dismissed a subsequent application
to it launched in terms
of section 17(2)(
f
)
of the
Superior Courts Act 10 of 2013
for it to reconsider its
decision dismissing the application for leave to appeal. On 10
May 2021 the applicants attempted
to amend their counterclaim to the
proceedings which had been concluded by the granting of the summary
judgment. That ultimately
led to a
rule 30(1)
application which
served before Mbenenge JP who declared the steps taken after the
granting of the summary judgment to be irregular
and ordered the
applicants to pay costs on an attorney and client scale. I
digress momentarily to look at how the Judge President
expressed
himself about the matter.
[9]
The learned Judge President referred to
Soil
Fumigation Services
[1]
in which the legal position as it relates to a counterclaim in
proceedings in which a summary judgment had been granted was stated
as follows:
“
With regard
to the court’s overriding discretion to refuse summary judgment
even where the defendant’s affidavit does
not measure up to the
requirements of
Rule 32(3)(b)
, it has been said that, in view of the
extraordinary and stringent nature of the summary judgment remedy,
that discretion may be
exercised in a defendant’s favour if
there is doubt as to whether the plaintiff’s case is
unanswerable and there is
a reasonable possibility that the
defendant’s
defence
is good.
…
The reason why the remedy of summary judgment is referred to as
‘stringent’ and ‘extraordinary’ is
because it
effectively closes the door of the Court on the defendant without
affording an opportunity to ventilate the case by
way of a trial.
When the answer raised in the opposing affidavit is in the nature of
a counterclaim instead of a plea, the
position is, however, somewhat
different. Even where summary judgment has been granted for
that part of the claim that would
be extinguished by the
counterclaim, the defendant can still pursue the counter-claim by
issuing summons in a separate action.”
[10]
In his judgment the learned Judge President went on to characterize
the applicants’ conduct as follows:
“
I am
satisfied that the conduct of the respondents can fairly be described
as vexatious. It is reprehensible and cries out
for an award of
a punitive costs order. This conduct was persisted in at all
twists and turns in proceedings preceding the
instant case.”
[2]
[11]
The misguided attempt of the applicants to introduce an amendment to
concluded proceedings was given short shrift by the Judge
President.
However, the applicants were undeterred in their determination
to defeat the very purpose of the summary judgment
procedure which
was described in
Edwards
[3]
as “
…
clearly
designed to prevent a plaintiff’s claim being delayed by what
amounts to an abuse of the process of the Court
.”
[12]
On 20 May 2021 the applicants took their appeal against the summary
judgment to the Constitutional Court. They applied
for leave to
appeal against the decision of the Supreme Court of Appeal dismissing
their application for leave to appeal.
On 8 December 2021 the
Constitutional Court dismissed the application for leave to appeal to
it on the basis that the matter did
not engage its jurisdiction.
[13]
The decision of the Constitutional Court should ordinarily have
brought an end to what can fairly be referred to as the applicants’
multipronged litigation stratagem. Unfortunately, that was not
to be as the applicants applied for leave to appeal against
the
judgment and order of the Judge President in which he essentially
found the continuation of litigation in what was obviously
concluded
proceedings to be irregular. That application for leave to
appeal was dismissed on 22 February 2022.
[14]
Following the dismissal of the said application for leave to appeal
the applicants wasted no time in coming to this Court again,
now in
these proceedings. They launched an urgent application on 4
March 2022 seeking to suspend the judgment and order of
Dukada AJ in
which summary judgment had been granted against them. This,
after they had exhausted all legal avenues to no
avail and the
respondents were continuing to execute a warrant of execution issued
pursuant to the granting of the summary judgment.
The
current proceedings
[15]
It appears from the papers that the applicants seek to have the
judgment and order granting summary judgment suspended “
pending
the determination by the court as to how much the 1
st
and 2
nd
applicants should pay to the 1
st
and 2
nd
respondents in instalments
.”
This on its own is rather unorthodox as I will attempt to demonstrate
below.
[16]
Even assuming that it was a prayer that could be sought and granted
there are a number of other difficulties. I mention
a few of
them hereinbelow. First, it is nowhere stated in the founding
affidavit what the legal basis is for the suspension
of a judgment
that was lawfully sought and obtained and against which all avenues
of appeal have been exhausted. What is
clear though is that the
judgment itself is not sought to be impugned. What is impugned
and is relied upon to seek the suspension
order is some or other
conduct of the respondents in the execution of a warrant of execution
or some other attempt of theirs at
getting the judgment satisfied.
The papers are replete with allegations of
malevolence
on the part of the respondents in attempting to execute the
warrant of execution. Courts should ordinarily not be concerned
with the motives of those who execute court orders. Court
orders stand on their own and must be given heed to regardless
of the
motives of those who execute them or cause them to be obtained and
executed, which may not necessarily always be honourable.
[17]
The real question is always whether the sheriff or whoever is charged
with executing a court order is armed with a valid warrant
of
execution or court order. If the answer is in the affirmative,
cadit
quaestio
.
Even if the judgment creditor has the worst of motives, that cannot
be used to suspend a lawful judgment absent evidence
of unlawful
conduct on his part. If the judgment debtor were to suffer some
or other form of loss or indignity which results
from the execution
of a lawful judgment or order
—
that deserves no protection from the operation of the law especially
if it is a natural consequence of the judgment itself.
The
judgment debtor is always entitled to claim damages against anybody
that causes him loss of one form or another. Some
loss may be
delictual while some may be pecuniary. However, orders of the
court must be lawfully executed and nothing and
no one is allowed to
stand in the way of that process.
[18]
One of the reasons why a judgment or order of a court can only be
interfered with or even suspended under stringent and very
exceptional circumstances is a constitutional injunction. The
whole constitutional framework and the rule of law have, as
their
pillars, the unhindered execution of court orders and obedience to
them by all citizens, especially those to whom they apply.
The
force of court orders lies not in their being issued but in their
execution once they are issued. It is this principle
that is
liable to be tempered with under strictly circumscribed and
exceptional circumstances and for very valid reasons.
That this
is so appears from the Constitution itself
[4]
.
[19]
The second difficulty with the suspension
order
that is
being
sought is that it is
sought pending the determination by the court of the amount the
applicants should pay in instalments.
In these proceedings
there is no prayer sought for
this C
ourt
to make that determination nor has an attempt to make such a case
been made. It follows that it is not expected of this
Court to
make
the determination of the amount to
be paid in instalments in these proceedings even if one were to
assume for a moment that it
was a determination that a court could
make. There is also no indication of which are the proceedings
in which the court
will be asked to make the determination. The
authority of the court to suspend a lawful judgment for it to
determine in some
unspecified proceedings an amount to be paid in
instalments is, as far as I know, unprecedented even on the basis of
the court
exercising its inherent jurisdiction.
[20]
There are other obvious difficulties with what the applicants seek to
do. I will illustrate this with an example. What
this
means is that as soon as judgment debtors have exhausted their
defences and a judgment sounding in money is issued against
them,
they can come to the court and ask for that judgment to be
suspended. That suspension would be for the court to make
a new
arrangement separate from the original agreement, for the payment of
the judgment debt in instalments. This not only
defies logic in
as much as it is unprecedented but it would dismantle the whole
foundation of execution against property and lead
to endless
litigation. Needless to say that court rolls would be clogged
up with a deluge of litigation for courts to now
determine how the
judgment debts are to be paid even in circumstances where there is
property that can be attached and sold in
execution to satisfy the
judgment debt.
[21]
In this matter the applicants rely on a draft agreement allegedly
drawn after negotiations between the legal representatives
of the
applicants and those of the respondents. The first problem is
that the alleged agreement is signed only by and on
behalf of the
applicants. How it is even referred to as an agreement is
difficult to comprehend. If the negotiations
were conducted and
concluded by and between the parties’ legal representatives as
alleged, I find it very strange if not
bewildering that there is not
a single letter or email exchanged between them in which the terms of
the agreement are recorded
and confirmed. There is simply no
evidence of an agreement having been reached at all beyond the mere
ipse dixit
of the applicants. This is important because
the alleged agreement seems to be the main basis on which the court
in this
case might somehow be expected to make an order for the
applicants to pay their debt in instalments. I am actually
surprised
that the applicants’ attorneys came to court seeking
a suspension order on the basis of what is clearly a non-existent
agreement.
Legal representatives are, in my view, not just
mouth pieces of their clients. They have a duty to advise their
clients properly
and have a right and indeed a duty not to accept
instructions that offend against their ethical obligations to the
court.
Rule
45A of the Uniform Rules of Court.
[22]
It appears for the first time in the replying affidavit that the
legal basis on which the suspension order is sought is rule
45
A
of the Uniform Rules of Court. This rule
provides:
“
The
court may suspend the execution of any order for such period as it
may deem fit.”
[23]
There is no doubt that a court does have jurisdiction to suspend the
execution of any order. However, that discretion
must be
exercised in such a way that court orders are not undermined by being
suspended for speculative reasons in circumstances
where the judgment
or order is not or cannot be put in dispute. Sound factual and
legal basis for the suspension so sought
must be clearly established
by the applicant to enable the court to carefully exercise its
discretion.
[24]
The applicable principles and the considerations that are relevant in
an application based on rule 45A have been considered
by our courts
before. I can do no better than refer to the exposition of the
legal position by Davis J in
Firm
Mortgage Solutions
[5]
.
I am in respectful agreement with the learned Judge’s
exposition of the law in that matter. Therein the court
said:
“
The question
that arises is: on what basis, given that there is no application for
rescission of judgment, would a court exercise
a discretion to grant
the application as urged upon me by the applicants? The answer
is to be found in rule 45A of the Uniform
Rules of Court. In
turn this necessitates an answer to a further question, as to whether
the particular rule is applicable
in a case such as the present.
In
Gois
t/a Shakespeare’s Pub v Van Zyl and Others
2011
(1) SA 148
(LC) Waglay J (as he then was) set out the basic
principles for a grant of a stay of execution which, as Erasmus in
Superior
Court Practice
writes, is applicable to rule 45A. These principles were
summarized by the learned judge (at para 37) as follows:
‘
(
a
)
A court will grant a stay of execution where real and substantial
justice `
requires it or where injustice would otherwise result.
(
b
)
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.
(
c
)
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(s); and
(ii) irreparable harm
will result if execution is not stayed and the applicant ultimately
succeeds in establishing a clear right.
(
d
)
Irreparable harm will invariably result if there is a possibility
that the underlying
causa
may ultimately be removed, ie where
the underlying
causa
is the subject-matter of an ongoing
dispute between the parties.
(
e
)
The court is not concerned with the merits of the underlying dispute
– the sole enquiry is simply whether the
causa
is in dispute.’
To the extent that there is any
uncertainty as to the meaning of these dicta, further clarity is to
be found in the judgment, where
the learned judge examines the facts
of the case, and, in particular, whether a stay of execution should
be granted, pending the
outcome of a rescission application.
Waglay J then said (para 38):
‘
The
applicant will furthermore suffer irreparable harm if execution is
not stayed, and the rescission application is successful.’
It is clear
that what was intended in this case was that, where the causa for the
execution is a judgment, and the judgment is placed
in dispute
because an application for rescission has been brought, grounds may
well exist for the exercise of a favourable discretion
by a court.
In the
present case there is no such application. The question arises
as to whether rule 45A provides a residual, equitable
discretion to a
court confronted with the present set of facts.
What then does the applicant offer as
the justification for an exercise of a court’s discretion in
its favour?
In essence, it puts up a set of
proposals by which second applicant seeks to ensure that the total
debt to first respondent will
be discharged by no later than 31
January 2014. In both the founding affidavit and a further
affidavit the court is informed
that the second applicant has the
means to settle the debt and, accordingly, a discretion should be
exercised to achieve this purpose,
particularly because of the
notorious fact that, if property is sold in execution, the property
fetches a lower purchase price
than otherwise would be the case.”
[25]
It is clear from the applicants’ founding affidavit that the
judgment is not being impugned. The applicants indicate
that
they intend to pay the debt and satisfy the judgment debt. They
seek the suspension order so that they can get time
“to arrange
the necessary finance”. It is even indicated that “[a]
period of six months after the
ex parte
application has been
disposed of will be reasonable to arrange for the payment of the
judgment debt.”
[26]
The applicants have made a big issue about the
ex parte
order
the respondents applied for and was granted by the court, which it is
alleged, makes it impossible for the applicants to
raise finance.
The
ex parte
order was granted on 01 February 2022 and the
relevant rule
nisi
was, on 15 February 2022, extended to the 29 March 2022. The
parties were put to terms regarding the filing of papers with
the 01
April 2022 being the date given for the hearing of that matter on the
opposed roll. I must mention that the applicants
were legally
represented on the 15 February 2022.
[27]
During the hearing of this matter I asked Mr Mtshabe, the attorney
for the applicants, why did the applicants not apply on
an urgent
basis for the reconsideration of the order that was obtained
ex
parte
for which they were complaining about bitterly. He
could not explain with any degree of cogency why this route was not
considered
and even taken on an urgent basis as soon as the
applicants became aware of the
ex parte
order. He could
only incoherently submit that the applicants have chosen the rule 45
A
route. The importance of this lies in the fact that the papers
are replete with allegations of the injustice of obtaining
an
ex
parte
order which the respondents are accused of using to close
the applicants’ access to financial assistance by the banks.
[28]
Rule 6(8) of the Uniform Rules of Court provides:
“
Any
person against whom an order is granted
ex
parte
may anticipate the return day upon delivery of not less than
twenty–four hours’ notice.”
[29]
Rule 6(12) (
c
)
reads:
“
A
person against whom an order was granted in
his
absence in an urgent application may by notice set down the matter
for reconsideration of the order.”
[30]
The applicants have ignored these readily available remedies which
are clearly applicable to the issue of the
ex parte
order.
They have come before this Court relying, apparently, on rule
45
A
. This is again difficult to understand because it is
alleged numerously that the
ex parte
order is central to the
applicants’ inability to obtain bank finance to pay the debt.
The rule providing for the obtaining
of an
ex parte
order does obviously also provide for a fast remedy so as to
discharge the order obtained
ex parte
or ameliorate the
effects of the fact that the impugned order had been obtained
ex
parte
. It does appear that the applicants chose not to
avail themselves of any of these remedies. Be that as it may,
the
issue of the
ex parte
order is still pending before court
in other proceedings. I find it strange that the applicants
have come before this Court
and sought to also rely on the pending
ex
parte
order issue in these proceedings. It
behooves
of me to emphasize once again that in all the applications the
applicants have launched the judgment of Dukada AJ granting the
summary
judgment was not being challenged. What is now sought
to be achieved is that the warrant of execution issued pursuant
thereto
should not be executed and that the judgment be suspended.
[31]
It is difficult not to see the craftiness of the applicants.
They go on
ad nauseum
about the plight of their employees and
even invoke our time honoured principle of Ubuntu. What the
applicants do not even
try to explain is why did they put their
employees in the situation in which they are claiming to be salvaging
them from now.
First, they have always known that they owe the
respondents the amount claimed. Second, and in any event if
they had ever
given themselves some irrational reason to doubt being
indebted to the respondents on the face of the acknowledgment of
debt, the
judgment of Dukada AJ which was delivered in August 2020
would have dispelled that doubt. They launched multiple appeal
processes
all the way to the Constitutional Court. All those
appeals failed as they never had merit and were indeed nothing more
than
an attempt to subvert a judicial process of execution by abusing
the legal process of appeals. Since August 2020 until February
2022 the applicants have not used that time to apply for finance
―
only to now suddenly use the
ex parte
court order which
was only obtained on 1 February 2022, to complain about being blocked
from getting funding from financial institutions.
Clearly the
serious plight of the employees is now being used as a pawn and
another misguided attempt at obfuscation to avoid having
to pay if
possible or for the applicants to pay on their own terms.
[32]
All those considerations bring me to the question pertinently posed
by Davis J in
Firm Mortgage
Solutions
(
supra
)
which he went on to answer
which is congruously applicable to
the facts of this matter. The learned Judge said:
“
Could it
possibly be that rule 45
A
envisaged the exercise of an equitable jurisdiction unhinged from any
legal causa, but simply predicated on the equities of a case?
If this were the case, almost every
default judgment, which provides for a sale in execution of a
property, at some point is likely
to require a second hearing,
pursuant to stay in terms of rule 45
A
. If this were what
was intended, rule 45A should so provide expressly or by clear,
necessary implication. In my view
it does not so provide, for
the very reason which is highlighted in my example.”
[33]
Rule 45A is simply not available to a litigant in circumstances in
which the execution is pursuant to a lawful judgment obtained
in
accordance with our law and the rules of court. Such a judgment
is constitutional in every sense of the word. When
it is not
being impugned speculative theories about the concept of Ubuntu and
even the rights of employees should never be used
to undermine the
effectiveness of court orders lawfully obtained which are enforced
through a legally sanctioned mechanism.
I have hereinbefore
already alluded to the many reasons why this application cannot
succeed as it is devoid of any merit. It
is at best part of a
craftily conceived stratagem to frustrate and undermine a judicial
process with no hope of success in the
final analysis. It
cannot succeed, if for no other reason, then certainly for the reason
that the underlying
causa
which forms the basis for the
judgment has been numerously confirmed all the way to the
Constitutional Court which is the court
of last instance in this
country. The applicants’ application therefore falls to
be dismissed not only for being unmeritorious
and vexatious but also
because it is a clear and unbridled abuse of the court process.
The
interpleader proceedings
[34]
However, the third applicant stands on a different footing. It
is not in dispute that the third applicant is neither
a judgment
debtor nor involved in the myriad of cases between the first and
second applicants and the first and second respondents.
She
comes into the picture because of the interpleader proceedings in
which she claims personal ownership of some of the goods
that have
been attached in execution of the summary judgment. She was not
a litigant in the proceedings that culminated in
that judgment.
The interpleader proceedings are still pending and their merits and
demerits are not to be determined in these
proceedings. That
being the case I will not traverse the issues in dispute in respect
of the interpleader proceedings.
In his founding affidavit
contents of which have been confirmed by the third applicant, the
second applicant indicates that with
the exception of vehicles all
the other goods have not been removed. They are still at the
premises of the third applicant.
He further makes it clear that
the vehicles listed in annexure “Z” were removed long
time ago. There is no suggestion
in the papers that any of the
vehicles belongs to the third applicant. In fact the second
applicant says that the only vehicle
he mentions specifically being a
Mercedes Benz vehicle is still under an instalment credit agreement
and does not belong to him
or the third applicant. It seems to
me that the third applicant must succeed because interpleader
proceedings have been instituted
and are still pending.
The
Urgency
[35]
Urgency has been raised pertinently in this matter. The wanton
abuse of the urgency rules is unfortunately prevalent
in this Court.
The applicants have also joined the fray. Just to mention one
or two issues, firstly, the judgment was
granted in August 2020 and
that judgment which is sought to be suspended on an urgent basis is
not being challenged. Secondly,
the execution process, on the
applicant’s own papers, started “long ago” when the
vehicles were attached.
How they, in those circumstances rushed
to this Court on an urgent basis is a clear manifestation of the
abuse of the court process
and the urgency rules. However, all
the papers having been filed including heads of argument I exercised
my discretion and
heard the matter in full. Full submissions
having been made and the matter being ripe for a final order, it
would therefore
serve no purpose to deal with the respective parties’
contestations on urgency. Furthermore, and besides the issues
of urgency that the respondents have raised, the matter did suffer
some inexplicable and regrettable delay in court and was not
heard
timeously even though at times the parties were ready to ventilate
their respective cases.
Requirements
for i
nterdicts
[36]
I do not intend to enumerate or elaborate on the requirements for an
interdict. Those requirements are well known and
there is a
plethora of case law on them. I must, however, point out that
none of them have been met in this matter.
The reason for that
is clear elsewhere in this judgment. In any event what the
applicants have done in trying to deal with
the requirements for an
interdict is largely to mention some of the requirements and repeat
the allegations already made.
The attempt to interdict the
execution of the writ or the attachment of the goods in pursuit of a
judgment in circumstances where
the intention is not to impugn the
judgment but so that a court may determine the amount to be paid in
instalments based on a non-existent
agreement is bewildering to say
the least. What colour of right can be asserted in those
circumstances is not addressed in
the papers. I do not see how
irreparable harm, even if it were to be feared that it might
eventuate, which can only be a
natural consequence of the execution
of a court judgment that is not being challenged, arises on the facts
before me. I have
already indicated that none of the
requirements for an interdict have been established in this case.
It follows that the
first and second applicants’ application
must fail even for this reason in addition to everything else that
has been addressed
elsewhere in this judgment.
The
issue of costs
[37]
In the answering affidavit the respondents have cited many reasons in
asking the court to dismiss the application with costs
on a scale as
between attorney and own client to be paid
de
bonis
propriis
against the applicants’ legal representatives.
This issue is not confronted squarely by the applicants or their
attorneys
on the papers nor did Mr Mtshabe seriously deal with it
during the hearing. He was, at best incoherent and did not
attempt
to explain the recklessness that characterized the
applicants’ papers, more especially the vexatiousness of this
application.
[38]
The history of this matter becomes very pertinent and at the risk of
being repetitive I refer to some of it. It appears
from the
judgment of Dukada AJ that the applicants could not have had a proper
basis for raising any defence. In fact it
is clear that there
was never a
bona fide
defence and defending the matter was
clearly being done for the impermissible purposes of delay. The
court granted the summary
judgment only for the applicants to launch
a baseless application for leave to appeal in circumstances in which
they had no reasonable
prospects of success at all on appeal.
That application was dismissed with costs. Unfazed, the
applicants petitioned
the Supreme Court of Appeal for leave to
appeal. Predictably, that application was dismissed with
costs. The applicants
continued with this senseless litigation
and applied to the President of the Supreme Court of Appeal for the
reconsideration of
that court’s decision refusing the
application for leave to appeal. That application was also
dismissed with costs.
[39]
The applicants at some point also issued what was purported to be a
notice to amend relating to a claim for the performance
of an oral
sale agreement demanding to be paid R12 857 804.67.
The strangest part of this purported amendment is
that the amendment
was sought to be introduced in proceedings that had been determined.
The respondents had to approach the
court in terms of rule 30 of the
Uniform Rules of Court for the setting aside of the irregular steps
taken by the applicants and
they were successful. The
applicants were ordered to pay costs on an attorney and client
scale. The applicants launched
a baseless application for leave
to appeal against that judgment. That application was dismissed
with costs on an attorney
and client scale. In the rule 30
matter and the application for leave to appeal Mbenenge JP described
the conduct of the
applicants as vexatious, reprehensible and an
abuse of the process of the court. In both judgments he ordered
the applicants
to pay costs on an attorney and client scale.
[40]
In the meantime and while all of this was happening the applicants
took the dismissal of their application for leave to appeal
the
judgment of Dukada AJ by the Supreme Court of Appeal to the
Constitutional Court. The highest court in the land dismissed
the application for leave to appeal to it. The first and second
applicants are now before this Court purportedly on the basis
of rule
45
A
. I have already dealt
with the merits thereof and the conclusion is that just like all the
other litigation of the applicants
in respect of the judgment of
Dukada AJ it is hopeless and devoid of any merit. In all this
pointless litigation since August
2020 to date, the applicants have,
with the assistance of their lawyers, relentlessly litigated with no
hope of succeeding in any
of them. This abuse of court process
has succeeded in ensuring that court’s time all the way to the
Constitutional
Court is wasted for more than a year now in countless
applications of one form or another. In my view, the time has
now come
for the punitive orders for costs to be meted out also to
the legal representatives who are either ill-advising the applicants
or are complicit in the applicants’ stratagem of delaying the
obviously inevitable if they do not pay.
[41]
The poor drafting and the poor advice given to the applicants have
always been a major contributor in this matter in the wastage
of the
court’s time in adjudicating senseless and unmeritorious
litigation in what the Judge President called “twists
and
turns”. In this case the right of access to courts is
being used clearly to defeat the very purpose of a court
judgment.
What an irony!! I do need to highlight a few instances of the
ill-conceived and misplaced advice the applicants’
attorneys
gave to the applicants which have also manifested themselves in poor
draftsmanship in respect of the papers. I do so
because that is also
very central to the exercise of this Court’s discretion in the
determination of the respondents’
application for costs to be
paid by the applicants’ attorneys
de
bonis propriis
.
[42]
First, the whole case is based on the wrong idea that a court
judgment can be suspended for any reason on the basis of a
fundamentally
flawed understanding of the inherent jurisdiction of
the court. In this instance the relevant prayer in the notice
of motion
is for the suspension of the judgment or order of Dukada AJ
“
pending
the determination by the court as to how much the 1
st
and 2
nd
applicants should pay to the 1
st
and 2
nd
respondents in instalments
”
[6]
.
Nowhere in the papers is it indicated what the legal basis is for the
court to suspend a judgment for the determination
by it in some
unspecified proceedings of instalments that must be paid. There
is no indication of the process that will lead
to the court making
that determination and when will that be. It appears from the
founding affidavit that all of this is
based on an alleged agreement
that turns out not to be an agreement as the document embodying the
so
-
called
agreement was signed only by and on behalf of the first and second
applicants themselves. Surely the applicants’
attorneys
could not have reasonably believed that because negotiations might
have taken place, therefore there was an enforceable
agreement on the
basis of which a lawful judgment of the court could be suspended.
They never even referred to any case law
for any of their weird
propositions.
[43]
Second, and very startlingly, in the heads of argument filed for the
applicants Mr Mtshabe who is the attorney of the applicants
and who
drew the heads of argument makes this shocking proposition:
“
2.10 It will
be noticed that in prayer 2.2 of the notice of motion the applicants
have included “… pending the determination
by the court
as to how much the 1
st
and 2
nd
applicants should pay to the 1
st
and 2
nd
respondents in installments.”
This
aspect can be removed, and the court can use its inherent discretion
as it
pleases.”
[7]
[44]
The question that follows logically is that with the proposed removal
of the only reason beyond the rest of the roof top allegations
for
the prayer for the suspension of the judgment, what is left on the
basis of which the court can now suspend the judgment and
to what
end. Nothing remains after that surgical excision, for lack of
a better
expression,
that Mr Mtshabe suggest the court should do. The whole
basis on which some discretion could possibly be exercise
d
falls away so do the interdict prayers sought. This is one of
the clear indicators of legal practitioners advising their
clients or
even encouraging them and assisting them in coming to court to pursue
senseless litigation. This i
nstead
,
of giving them proper, honest and sound legal advice. Legal
practitioners have a duty to be candid and play open cards with
their
clients and the court in pursuit of whatever their clients’
cause may be. They must also stay clear of anything
that could
mislead the court. Legal practitioners owe this duty not only
to their clients who pay them but also to the courts
which in the end
adjudicate the issues to establish where the truth lies and how it
should exercise its discretion. They
have an overarching duty
to assist the court in arriving at a just conclusion.
[45]
Third, perhaps the following prayers as they appear in the notice of
motion, even though on engagement with the court during
the hearing
of this matter, were withdrawn, do also indicate how misguided and
senseless the whole litigation is:
“
2.4 That the
4
th
respondent be and is hereby interdicted and restrained from
practicing as an attorney and legal practitioner of the above
honourable
court pending the availability of the Fidelity Fund
Certificate (FFC) that is issued by the Legal Practice Council of the
Republic
of South Africa.
2.5 That the 3
rd
and 4
th
respondent (sic) are hereby interdicted and restrained from using the
services of any Legal Practitioner, or attorney’s firm
or any
Legal Practitioner for that matter, pending the 4
th
respondent obtaining the Fidelity Fund Certificate.
2.6 That all the processes issued by
and through the 3
rd
and 4
th
respondent (sic)
with effect from 01
st
January 2022 be and hereby (sic)
declared invalid and of no force and effect as being unlawful; as the
4
th
respondent did not have a valid Fidelity Fund
Certificate for the financial year 2022 that is normally issued by
the Legal Practice
Council of South Africa.
2.7 That the 5
th
respondent
being the alleged husband of the 4
th
respondent be and
hereby (sic) interdicted and restrained from practicing and/or
pretending to be practicing as a legal practitioner;
and that the
said husband of the 4
th
respondent, whoever he is be and
is hereby interdict (sic) and restrained from pretending to be
working in the offices of the 3
rd
respondent forthwith.”
[46]
These prayers on their own which are not even remotely related to the
case of the applicants and the very many instances of
poor drafting
and illogical submissions can only lead to one obvious conclusion.
That is that this litigation is not intended to
achieve anything
other than to ensure that the judgment of Dukada AJ is not satisfied
or the execution of the warrant of execution
is delayed as much as
the judicial process forces a delay. It would be extremely
remiss of this Court were I to do nothing
about the extent of
negligence that is evident in this matter. The principles
applicable when a court is considering an application
for costs to be
paid
de
bonis propriis
against
legal practitioners have been part of our law for some time.
They were restated in
Multi-Links
which was quoted with approval by Mathopo JA in
Adendorffs
Boerderye
[8]
In that matter the court said:
“
[46] In
Multi-Links
Telecommunications LTD v Africa Prepaid Services Nigeria Ltd; Telkom
SA Soc Limited & Another v Blue Label Telecoms
Limited &
Others
[2013] 4 All SA 346
(GNP) the principles relating to costs orders
de
bonis propriis
against legal practitioners were re-stated and explained as follows:
‘
[34] Costs
are ordinarily ordered on the party and party scale. Only in
exceptional circumstances and pursuant to a discretion
judicially
exercised is a party ordered to pay costs on a punitive scale.
Even more exceptional is an order that a legal
representative should
be ordered to pay the costs out of his own pocket. … [T]he
obvious policy consideration underlying
the court’s reluctance
to order costs against legal representatives personally, is that
attorneys and counsel are expected
to pursue their client’s
rights and interests fearlessly and vigorously without undue regard
for their personal convenience.
In that context they ought not
to be intimidated either by their opponent or even, I may add, by the
court. Legal practitioners
must present their case fearlessly
and vigorously, but always within the context of set ethical rules
that pertain to them, and
which are aimed at preventing practitioners
from becoming parties to deception of the court. It is in this
context that society
and the courts and the professions demand
absolute personal integrity and scrupulous honesty of each
practitioner… .
[35] It is
true that legal representatives sometimes make errors of law, omit to
comply fully with the rules of the court or err
in other ways related
to the conduct of the proceedings. This is an everyday
occurrence. This does not, however, per
se ordinarily result in
the court showing its displeasure by ordering the particular legal
practitioner to pay the costs from his
own pocket. Such an
order is reserved for conduct which substantially and materially
deviates from the standard expected
of the legal practitioner, such
that their clients, the actual parties to the litigation, cannot be
expected to bear the costs,
or because the court feels compelled to
mark its profound displeasure at the conduct of an attorney in any
particular context.
Examples are, dishonesty, obstruction of
the interest of justice, irresponsible and grossly negligent conduct,
litigating in a
reckless manner, misleading the court, and gross
incompetence and a lack of care.’”
[47]
All of the considerations already mentioned above necessitate that
the court must show its displeasure at the abuse of the
court process
and the vexatiousness of this litigation and the reckless manner in
which the papers were drafted with an appropriate
order for costs.
Not only must the application fail but also a clear opprobrium is
called for which goes beyond just the
applicants in this case.
The recklessness, inattention and heedlessness of the applicants’
attorneys and their lackadaisical
drawing of the papers and
inappropriate advice they gave to their clients are too glaring not
to attract some censure. An
appropriate order for costs against
the attorney and the first and second applicants is necessary on the
facts of this matter.
The
results
[48]
In the result the following order shall issue:
1.
The first and second applicants’ application is dismissed.
2. The first and second
applicants are ordered to pay 80% of the costs of the application on
a scale as between attorney and client,
the one paying the other to
be absolved.
3. The first and second
applicants’ attorneys’ are ordered to pay 20% of the
costs of this application on a scale as
between attorney and client
de
bonis propriis.
4. The 6
th
respondent is ordered not to remove the goods listed in annexure “Z”
from the 3
rd
applicant’s premises, excluding
vehicles, pending the interpleader proceedings instituted at the
instance of the 3
rd
applicant.
_______________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Attorney for the
Applicants: N.Z. MTSHABE
Instructed by: N.Z.
MTSHABE INCORPORATED
MTHATHA
Counsel for the
Respondents: S.G. POSWA
Instructed by: YANDISWA
SONAMZI ATTORNEYS
c/o T. FONO ATTORNEYS
MTHATHA
Date heard: 22 March 2022
Date delivered: 12 April
2022
[1]
Soil Fumigation
Services Lowveld CC vs Chemfit Technical Products (Pty) Ltd
2004 (6) SA 29
(SCA)
at
para 11.
[2]
Mzontsundu
Trading (Pty) Ltd and Another v Lavelikhwezi Investments (Pty) Ltd
and Another
(ECM)
unreported case no 3996/19 of 7 December 2021 at para 40.
[3]
Edwards v
Menezes
1973
(1)
SA
299
(NC)
at
303 E-F
.
[4]
Section 165 of the
Constitution provides:
“
(1)
The judicial authority of the Republic is vested in the courts.
…
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to which it
applies.”
[5]
Firm Mortgage
Solutions (Pty) Ltd & Another v ABSA Bank Ltd and Another
2014 (1) SA 168
(WCC) 167 at
paras
4-9.
[6]
My emphasis.
[7]
My underlining
.
[8]
Adendorffs Boerderye v Shabalala and Others
(997/15)
[2017] ZASCA 37
(29 March 2017) at para
46 (unreported).