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[2021] ZAGPPHC 685
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Jumbo Rebuilds CC v Swart and Others (82452/2015) [2021] ZAGPPHC 685 (24 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES/NO
24/6/2021
Case number:
82452/2015
In the matter
between:
JUMBO REBUILDS
CC
Applicant
v
JUDITH CHANTEL
SWART
1
st
Respondent
EUNANDA FOURIE
INCORPORATED
2
nd
Respondent
THE STANDARD BANK
OF SA
LIMITED
3
rd
Respondent
THE
SHERIFF OF THE HIGH COURT, MBOMBELA
4
th
Respondent
JUDGEMENT
MOSOPA,
J
1.
This is an urgent
application in terms of Rule 6(12) of the Uniform Rules of Court,
wherein the applicant seeks relief to set aside
and uplift the writ
of execution issued on 28 April 2021, for the attachment and/or
freezing of the applicant’s Standard
Bank cheque account with
account number [….], and ancillary relief.
2.
On 28 April 2021, the
first respondent, who was cited as the Execution Creditor, issued a
writ of execution against Mr Johannes
Jakobus Swart, cited as the
Execution Debtor. Mr Swart is not a party to the current proceedings
under case number 82452/2015 in
this court, for a judgment amount of
R675 953.56. In terms of the writ of execution, the fourth
respondent was directed to
attach, remove and take into execution any
monies held on behalf of or to the benefit of the Execution Debtor,
in the trust bank
account of Annemarie Swanepoel Attorneys, further
alternatively, money held in trust for the benefit of the Execution
Debtor in
the trust account of any other attorney. The fourth
respondent was further instructed to execute against several listed
bank accounts,
including the bank account belonging to the applicant
in this matter.
3.
It is common cause that
the current applicant is not a party to the proceedings that involved
the issuing of the writ of execution
by the first respondent.
4.
Two points-in-limine
were raised by the first and second respondent
in
casu
, in that;
1.
the matter is not
urgent; and
2.
non-joinder of Mr JJ
Swart as a party to the current proceedings.
5.
In contention, Ms
Vermaak-Hay, on behalf of the applicant, contended that the matter is
urgent for two reasons;
1.
for the unlawfulness of
the attachment; and
2.
prejudice to be
suffered by the applicant and its employees.
6.
For the sake of
completeness, I find it prudent to refer to the provisions of Rule
6(12)(b) of the Uniform Rules, which governs
the procedure in this
type of application and provides;
“
12(b)
– In every affidavit or petition filed in support of any
application under paragraph (a) of this sub-rule, the applicant
must
set forth explicitly the circumstances which is averred render the
matter urgent and the reason why the applicant claims that
applicant
could not be afforded substantial redress at a hearing in due
course.”
7.
In the matter of
Luna
Meubel Vervaardigers v Makin and Another
1977 (4) SA 135
(W)
at
para 137F, Coetzee J, when dealing with the provisions of Rule
6(12)(b), remarked;
“
Mere
lip service to the requirements of Rule 6(12)(b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter is
set down.”
8.
Notshe AJ, in the
matter of
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others (11/33767) [2011] ZAGPJHC 196
,
when called upon to make a similar determination, observed;
“
The import
thereof is that the procedure set out in rule 6(12) is not there for
taking. An applicant has to set forth explicitly
the circumstances
which he avers render the matter urgent. More importantly, the
Applicant must state the reasons why he claims
that he cannot be
afforded substantial redress at a hearing in due course. The question
of whether a matter is sufficiently urgent
to be enrolled and heard
as an urgent application is underpinned by the issue of absence of
substantial redress in an application
in due course. The rules allow
the court to come to the assistance of a litigant because if the
latter were to wait for the normal
course laid down by the rules it
will not obtain substantial redress.”
9.
This application has its genesis in a
warrant of execution which was issued on behalf of the first
respondent against Mr JJ Swart
after he failed to comply with a
maintenance order which the first respondent obtained against him.
The first respondent had a
suspicion that Mr Swart was receiving
large amounts of funds and that Mr Swart was dispersing joint estate
assets, through various
entities, including the applicant.
10.
In terms of the writ of
execution, the fourth respondent, who does not oppose this
application, together with the third respondent
(Standard Bank), was
not authorized to freeze the applicant’s bank account, but
merely attach same. In that regard, the fourth
respondent
misunderstood its mandate. The first and second respondents indicated
that they do not have any objection to the applicant’s
account
being unfrozen.
11.
Ms Vermaak-Hay
contended that the Sheriff did not attach the account of Annemarie
Swanepoel Attorneys and that the writ of attachment
does not direct
the fourth respondent to attach the account of the applicant and as
such, it is unlawful. Further, that the continued
freezing of the
applicant’s bank account prejudices the applicant in that it
will result in the applicant closing shop, as
it will be unable to
meet its debt obligations. Furthermore, it will prejudice the
employees of the applicant as the freezing of
the account occurred at
the end of May, which meant that they could not get their salaries
and this forced the applicant to secure
a loan in order to pay these
salaries. Also, this will result in the applicant’s employees
again not being paid at the end
of June.
12.
Ms Ferreira correctly
contended in my view, that the unlawful attachment of the applicant’s
bank account on its own does not
render the matter urgent. After the
freezing of the applicant’s bank account, the applicant never
ceased operations –
it continued to operate and I take it that
it is still operating, despite its bank account be frozen. The
applicant failed to disclose
the origin of its loan used to pay its
employee’s salaries at the end of May, and whether this loan
was repaid or not.
13.
The applicant knew
about the freezing of the bank account on 13 May 2021. Several
correspondences were exchanged between the applicant
and the first
and second respondents, up until 1 June 2021, when the application
was issued on 9 June 2021. There is no explanation
on the papers as
to what the applicant did from 2 June 2021 up until the application
was issued on 9 June 2021, to make it a point
that the matter is
enrolled on the court roll. However, that aspect on its own cannot be
a ground for refusing to regard the matter
as urgent. That aspect
must be assessed in light of the circumstances of the case in
totality and the explanation given.
14.
The applicant was
supposed to pay its employees on 25 May 2021, but could not do so as
its bank account was frozen, resulting in
its employees only being
paid on 1 June 2021. Despite not being paid, as explained above, the
applicant continued to exchanged
correspondence with the first and
second respondents, despite the fact that it was clear that the
respondents were not willing
to uplift the attachments until certain
conditions are met. That, in my view, was an opportune time for the
applicant to have brought
the current application. This aspect,
together with the unexplained period of delay in bringing the urgent
application against
the respondent, does not render the matter
urgent. I am of the view that the matter can be dealt with in due
course, where the
applicant can get substantial redress in light of
the concession made that the applicant’s bank account can be
unfrozen.
15.
I now turn to deal with
the second point-in-limine raised by the first and second
respondents, relating to the non-joinder of Mr
Swart to the current
proceedings. The test is whether or not a party has a “
direct
and substantial interest
”
in the subject matter of the action; that is, a legal interest in the
subject matter of the litigation which may be affected
prejudicially
by the judgment of the court. The mere fact that a party may have an
interest in the outcome of the litigation does
not warrant a
non-joinder plea.
16.
Mr Swart is one of the
trustees of JJ Swart Family Trust (“the Trust”), together
with Mr Jacques Antonie Oelofse and
Mr Neville Mathee, which is the
sole owner of the applicant. Mr Swart is also the capital and income
beneficiary of the Trust,
together with his children. Mr Swart, in
the warrant of execution proceedings, he is cited as the Execution
Debtor, which its unlawfulness
happens to be the subject matter of
the current application.
17.
In the document titled
“Close Corporation Certificate” dated 14 August 2020, Mr
Swart proclaims himself as a member
of the applicant. Further, he
deposed to an affidavit on the same date in which he stated that he
is a member of the applicant.
18.
There is nothing to
gainsay that the Mr Swart did not sign the two documents referred to
above and as such, I am convinced that
Mr Swart was supposed to be
joined as a party to the current proceedings. It must also be noted
that the applicant is also joined
as a party together with the Trust
and its trustees in the pending divorce action between the first
respondent and Mr Swart.
19.
I have already dealt
with the concession made by the first and second respondents that the
applicant’s bank account may be
unfrozen. What is left for me
is whether I am competent to make such an order in light of my
findings pertaining to the two points-in-limine
raised by the first
and second respondents. There is no doubt that the fourth respondent
acted outside his mandate as his actions
were not what the first and
second respondents intended to be a consequence. I am of the view
that justice in this matter, despite
my findings on the
points-in-limine, will be better served if the account of the
applicant is unfrozen.
20.
In the consequence, I
then make the following order;
1.
The application is
struck from the roll for lack of urgency and the failure to join Mr
Johannes Jakobus Swart as a party to these
proceedings;
2.
That the third
respondent is ordered to unfreeze the applicant’s Standard Bank
cheque account, with account number 10137615882;
3.
The applicant is
ordered to pay the costs occasioned by this application.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv I Vermaak-Hay
Instructed
by:
Swanepoel and
Partners Incorporated
For
the respondent:
Adv R Ferreira
Instructed
by:
Eunanda Fourie Incorporated
Date
of hearing:
23 June 2021
Date
of judgment:
24 June 2021