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[2021] ZAGPJHC 395
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Van Den Bos N.O. v Mohloki and Others AND Van Den Bos N.O v Ngcameva and Another (2020/11190; 2020/11191) [2021] ZAGPJHC 395; 2022 (2) SA 616 (GJ) (2 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: Yes
2/9/2021
Case
No.: 2020/11190
In
the matter between:
JAN VAN DEN BOS
N.O.
Applicant
and
MOHLOKI,
HERMAN RAMOKHELE
First Respondent
MOHLOKI,
PATRICIA
Second Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Third Respondent
AND
Case
No.: 2020/11191
In
the matter between:
JAN
VAN DEN BOS
N.O.
Applicant
and
NGCAMEVA,
NOMVAKALISO FLORENCE
First Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down upon such circulation.
Gilbert
AJ:
1.
Can, and should, this court as a division
of the High Court declare immovable property specially executable
pursuant to orders granted
in the magistrates’ court? Further,
does Uniform Rule 46A apply only in respect of execution
against residential
immovable property that are the primary
residences of judgment debtors, or to all residential immovable
property?
2.
The relevant facts for purposes of the
judgment can be briefly stated.
3.
The applicant acts in his capacity as a
court appointed administrator of the Panarama Place body corporate
for a sectional title
scheme established in terms of the
Sectional
Titles Act, 1986
. The sectional title scheme is situated in Berea,
Johannesburg.
4.
The relevant respondents are registered
owners of sections (units) in the sectional title scheme. The
applicant acting in his capacity
as administrator of the body
corporate obtained orders by default against the relevant respondents
in the Johannesburg Magistrates’
Court for arrear contributions
and other charges owing to the body corporate. Attempts to execute on
warrants of execution issued
out of the magistrates’ court were
unsuccessful as no attachable movable assets belonging to the
respondents could be found
at the units, with the deputy sheriffs
rendering
nulla bona
returns
of service. Applications by the respondents in the magistrates’
court for rescission of the default orders failed.
The respondents
have sought to appeal the refusal of the rescissions to the High
Court. The applicant contends that the respondents
are not pursuing
those appeal proceedings with any vigour.
5.
The
applicant seeks to paint a picture of the respondents being
recalcitrant owners who have not paid their contributions and other
charges owing to the body corporate for many years, and so much so
that the judgment debts exceed the municipal values of the sectional
title units. The respondents on the other hand seek to paint a
picture of an administrator who does not genuinely seek to advance
the interests of the body corporate and the sectional title owners,
and who refuses to properly account for payments that he has
received. It is unnecessary for me to decide which of these pictures
is correct as I am bound to proceed on the basis that the
orders
granted in the magistrates’ court stand until rescinded or set
aside on appeal. Although the respondents, who were
represented in
the hearing before me by their attorney, Mr Kubayi, asserted that
execution proceedings are stayed until the appeal
proceedings in
respect of the rescission applications have been determined, this is
not so.
[1]
6.
The applicant, relying upon the
nulla
bona
returns of service rendered
pursuant to the warrants of execution issued out of the magistrates’
court, launched these present
proceedings in the High Court to
declare the units as immovable properties specially executable, and
to authorise that writs of
execution be issued in terms of Uniform
Rule 46(1)(a).
0
cm; line-height: 150%">
7.
Before
the hearing of the matter, I requested the parties to make
submissions
[2]
whether the High
Court has jurisdiction to, and should, declare immovable properties
specially executable in relation to judgments
granted in the
magistrates’ court. My concern was that it was not readily
apparent to me that the High Court should
be approached to
declare immovable property executable pursuant to orders granted in
the magistrates’ court and where the
execution process had been
initiated in the magistrates’ court.
8.
I was informed by applicant’s counsel
that it was not unusual for this Division of the High Court to grant
such orders but
that she was unable to locate any judgments squarely
on point. I too was unable to find any judgments squarely on point.
9.
The
applicant’s primary submission was that this court did have
jurisdiction to declare immovable property executable, and
as the
applicant had elected to come to this court seeking such a
declaration, this court was obliged to hear the application.
I was
referred to the recent decision of
The
Standard Bank of South Africa Limited and others v Thobejane and
Others
[3]
where
Sutherland AJA for the Supreme Court of Appeal in a strongly
worded judgment held that the High Court must entertain
matters
within its territorial jurisdiction if brought before it although the
magistrates’ courts may have concurrent jurisdiction
and that
the High Court must respect an applicant’s choice of forum.
[4]
The applicant’s submission was that this was dispositive of the
concern that I had raised.
10.
Sutherland
AJA went further in
Thobejane
and found that there was no obligation in law on financial
institutions to consider the costs implications and access to justice
of financially distressed people when a particular court of competent
jurisdiction is chosen in which to institute proceedings.
[5]
Mr Kubayi for the respondents before me argued that financially
distressed people in the position of the respondents should not
have
to litigate in the High Court in relation to their sectional title
units. Apart from this argument being contrary to
Thobejane
,
the respondents have not placed sufficient, if any, evidence before
the court to enable me to decide whether financially distressed
persons typically in the position of the respondents are worse off if
an applicant approaches the High Court to declare section
title units
specially executable. Sutherland AJA in
Thobejane
warned
against the court making findings based upon an appeal to
constitutional values in abstract
[6]
and upon generalised and speculative conclusions with no proper
evidential foundation.
[7]
11.
Applicant’s counsel specifically drew
my attention to paragraph 48 of
Thobejane
where the court found favour with the submissions made by the
financial institutions as applicants in those matters that High Court
proceedings had the benefits of judges, rather than magistrates,
overseeing the process of execution that inevitably follows a
judgment on a mortgage bond which is an inherently complex
decision-making process. My attention was also directed to
paragraph 61
of the judgment where Sutherland AJA recognised
that an appropriate question to pose, in relation to foreclosure
matters as a prime
example, was whether such a drastic an event as a
repossession of a person’s home ought not, as a matter of
policy, to enjoy
the scrutiny of the High Court rather than the
magistrates’ court.
12.
If the issue whether the High Court is to
declare property specially executable pursuant to judgments granted
in the magistrates’
courts is framed from the perspective of
whether this court has jurisdiction, and if so, whether it can
decline to exercise that
jurisdiction as there is concurrent
jurisdiction in the magistrates’ court, then
Thobejane
does present a formidable obstacle to this court declining to do so.
But upon reflection, that is the incorrect perspective from
which to
approach the issue. It is not so much whether this court has
jurisdiction, which, as will appear below, I accept that
it does but
rather whether the applicant has made out a case why this court
should grant the declaratory relief that he seeks,
rather than the
magistrates’ court.
13.
Nothing
is said by the applicant in his affidavits why the High Court
has been approached seeking that the units be declared
specially
executable rather than continuing with the execution proceedings
already initiated in the magistrates’ court. The
Magistrate’s
Court Rules expressly provide for residential immovable property to
be declared executable in a manner substantially
the same to that
provided for in the High Court.
[8]
14.
There
is no statutory provision that regulates whether the High Court
can declare property specially executable pursuant to
orders granted
in the magistrates’ courts. A consideration of the case law
recognises that a court can enforce a judgment
of another court by
way of what is known as process-in-aid.
[9]
So, to put it at its most basic, the High Court does have
jurisdiction to enforce another court’s judgment.
15.
But
the enquiry does not end there. Mokgoro J for the Constitutional
Court in
Bannatyne
v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
[2002] ZACC 31
;
2003
(2) SA 363
(CC) in paragraph 20 describes process-in-aid as an
appropriate remedy whereby a court enforces a judgment of another
court
which cannot effectively be enforced through its own process,
or as a means of securing compliance with its own procedures. The
second instance of process-in-aid is not relevant as the applicant is
not seeking to enforce a High Court order. But what is relevant
is
whether the magistrates’ court orders granted in favour of the
applicant can be effectively enforced through its own process.
[10]
16.
The applicant for process-in-aid must make
out a case for the court to grant that remedy. Mokgoro J in
Bannatyne
makes it clear in paragraph 21
that process-in-aid is a discretionary remedy, and in paragraph 22
that process-in-aid will
not ordinarily be granted for the
enforcement of a judgment of another court if there are effective
remedies in that court which
can be used. Mokgoro J further
recognises in paragraphs 22 and 23 that there may be instances
where the facts of a particular
case justify approaching the High
Court for such relief and that it would then be for the applicant to
show that there is good
and sufficient reason for the High Court
to enforce the judgment of another court.
17.
A typical example is the enforcement of a
magistrates’ court order by way of contempt proceedings in the
High Court, as there
are no contempt procedure available in the
magistrates’ court by way of civil proceedings and where the
aggrieved party’s
remedy when a person is in contempt of a
magistrates’ court order is to proffer a criminal charge in
terms of
section 106
of the Magistrate’s Court Act, 1944.
Bannatyne
is an example, in the context of enforcing maintenance orders granted
by the maintenance court.
18.
The
High Court has also granted process-in-aid declaring property
executable pursuant to a magistrates’ court order where
the
Magistrates’ Court Act does not allow for a specific type of
property to be attached and sold in execution.
[11]
19.
But what is common to these instances of
the High Court assisting by way of process-in-aid is that there was
no effective remedy
available in the other court.
20.
In
the present instance, the applicant has not attempted to make out any
case in his affidavits why this court has been approached
to enforce
the magistrates’ court orders and why such remedies, which are
clearly available, in the magistrates’ court
are not being used
or are ineffective. To the extent that
Bannatyne
expanded
the circumstances under which the High Court will grant
process-in-aid to also include where there is a good and sufficient
reason for the court to do so,
[12]
as distinct from whether there are effective remedies in the other
court, in the present instance the applicant again has not sought
to
make out a case in his affidavits why there is good and sufficient
reason for this court to enforce the magistrates’ court
orders.
Although applicant’s counsel sought to advance reasons during
argument why the magistrates’ court remedies
were ineffective,
such as deficiencies or reluctance in the magistrates’ courts
to grant such orders, these were submissions
made from the bar,
without any evidence being placed before the court to enable the
court to decide whether to grant any process-in-aid.
[13]
I bear in mind the warning sounded in
Thobejane
that
an adequate factual basis must be made out to sustain the submissions
that are made.
21.
Although
the applicant did not launch his applications from the perspective of
seeking process-in-aid – it does not appear
that the applicant
was alive to what he effectively was seeking was a form of
process-in-aid and appears to have assumed that the
High Court would
have no difficulty in enforcing magistrates’ courts orders - in
my view the basis upon which the High Court
can enforce another
court’s order is by being satisfied that the requirements for
granting process-in-aid have been satisfied.
It is not a question of
the High Court not having jurisdiction or refusing to exercise that
jurisdiction, but rather of the applicant
not having made out a case
for the relief that he seeks. That the applicant did not appreciate
that what in effect he was seeking
was a form of process-in-aid
cannot change what he is required to establish for the court to
exercise its discretion in his favour
by granting that process of
aid.
[14]
22.
When seen from this perspective,
Thobejane
supports my approach in this judgment rather than presents an
obstacle.
Thobejane
makes
it clear that the High Court’s inherent jurisdiction,
including to regulate its own process taking into account
the
interests of justice as provided for in section 173 of the
Constitution, does not create a free-for-all to approach the
High Court with whatever disputes may fall within its
territorial jurisdiction without regard to what must be established
for the court to grant the relief sought. Sutherland AJA in
Thobejane
cautions that:
“
The
inherent jurisdiction of the High Court can only be applied to
address a lacuna which, in the absence of judicial intervention,
would result in injustice
”.
[15]
23.
In
the present instance, there is no lacuna as the magistrates’
court rules expressly provide for property to be declared
executable
by the magistrates’ court in exercising its role of judicial
oversight over execution against residential immovable
property.
[16]
I find that this court cannot rely on an inherent jurisdiction as a
basis to enforce magistrates’ court orders, as applicant’s
counsel submitted I should, without the substantive requirements of
issuing process-in-aid having been satisfied.
24.
Sutherland
AJA in
Thobejane
also emphasises the right of an applicant or plaintiff as
dominus
litis
to choose whichever forum may have jurisdiction and that he or she
cannot be faulted for exercising that election because another
court
has concurrent jurisdiction, and should rather have instituted
proceedings in that other court.
[17]
In this instance, the applicant made the election to institute
proceedings in the magistrates’ court and having done so cannot
complain that he is required to follow through in his chosen
forum.
[18]
25.
In the circumstances, I accept that this
court does have jurisdiction and so I do not decline to entertain the
applications on the
basis that there is no jurisdiction. What I do
find is that the applicant has failed to establish a case in the
affidavits why
this court should through process-in-aid grant an
order declaring immovable property specially executable based upon
the orders
of another court.
26.
My finding is therefore dispositive of the
applications, and they are to be dismissed.
27.
In the circumstances, I do not propose
dealing in detail with the second issue that arose. That issue was
whether Uniform Rule 46A,
which has various requirements that an
applicant must satisfy in seeking an order to declare residential
immovable property specially
executable, only applies where that
residential immovable property is a primary residence. The difficulty
that presented itself
was that the applicant had failed to provide
evidence of the market value of the units and of the amount owing to
the local authority
for rates and other dues, as required in terms of
Uniform Rule 46A(5)(a) and (c). The applicant also failed
to make out
a case on the affidavits why the reserve price that his
counsel suggested of R80 000 was an appropriate reserve price.
The
applicant’s counsel sought to address these deficiencies by
submitting that the requirements of Uniform Rule 46A(5) and the
setting of a reserve price in terms of Uniform Rule 46A(9) only
applied where the property sought to be declared executable was
a
primary residence. In this instance, the applicant contended that the
units were not the primary residences of the respondents
as the
judgment debtors, which the respondents disputed, and therefore
Uniform Rule 46A did not apply.
28.
In my view, Uniform Rule 46A on its
plain wording applies to execution against all residential immovable
properties, save where
appears otherwise. Where specific provision is
made for additional requirements to be satisfied when the property
sought to be
executed against is a primary residence, this is
expressly provided for in the rule, such as in subrule (2)(b) where
it is expressly
stated that a court shall not authorise the execution
against immovable property which is a primary residence of a judgment
debtor
unless the court, having considered all relevant factors,
considers the execution on such property is warranted. In contrast,
none
of the other subrules under Uniform Rule 46A (other than
subrule (8)(d)) make mention of primary residence. To the contrary,
there are references to “
every
”
notice of application to declare residential of immovable property,
without distinction, being required to comply with various
requirements, including in subrules (3) and (5).
29.
I see nothing new in Uniform Rule 46A
which limits its application in its entirety only to execution
against primary residences.
Rather, I see Uniform Rule 46A
seeking to protect the interests of owners of all residential
properties and that where the
residential property is also a primary
residence, further safeguards are provided. Where the immovable
property is not residential
property (such as commercial or
industrial property), then Uniform Rule 46 alone, rather than Uniform
Rule 46A also, would apply
and which does not require the same level
of judicial oversight as required for residential properties. That
there is a range of
residential properties that may fall within the
ambit of the more restrictive Uniform Rule 46A, ranging from a
person’s primary
residence through to a holiday home or
investment residential property, can be addressed on a case by case
basis in the exercise
by the court of its discretion in discharging
its judicial oversight under the rule, rather than finding that the
rule does not
apply at all to some types of residential property.
30.
Assuming in favour of the applicant that
the units were not primary residences, the applicant nevertheless has
not complied with
the requirements of Uniform Rule 46A. Had I
not dismissed the applications as no case has been made out for
affording the
applicant process-in aid, I would not have granted the
orders in any event. Whether or not I would then have dismissed the
applications,
or postponed the applications to afford the applicant
an opportunity to supplement his papers to comply with Uniform Rule
46A I
need not decide.
31.
Although
the applications are to be dismissed based upon an issue raised by
the court
mero
motu
,
that does not deprive the respondents of costs in their favour in
having resisted the grant of the orders.
[19]
32.
In the circumstances, each of the
applications under case numbers 2020/11190 and 2020/11191 is
dismissed, with costs.
Gilbert
AJ
Date
of hearing:
18 August
2021
Date
of judgment:
2 September 2021
Counsel
for the applicant in both
matters:
Ms N
Lombard
Instructed
by:
Schüler Heerschop Pienaar Attorneys,
Roodepoort
For
the opposing respondents in both
matters:
Mr
N.E. Kubayi (Attorney)
Instructed
by:
Noveni Eddy Kubayi Inc.,
Alberton
North
[1]
Erstwhile
Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd
and another
2016 (6) SA 466
(GJ), not following the earlier decision of
Khoza
and others v Body Corporate of Ella Court
2014 (2) SA 112
(GSJ), which was in any event distinguished. See
also
Pine
Glow Investments (Pty) Ltd v Brick-On-Brick Property and Others
2019 (4) SA 75
(MN), which applied and approved
Willison
Court
and not
Khoza
.
[2]
No
objection was raised during the hearing that I had raised this issue
mero
motu
.
The issue of whether the High Court should be enforcing the judgment
of another court was
mero
motu
raised
in
Dreyer
v Wiebols and others
2013
(4) SA 498
(GSJ), which was an opposed matter, and in
Giant
Properties (Pty) Limited v Govender
2004
CLR 27
(W), which was an unopposed matter. In any event, given the
judicial oversight role of the court when it is approached for an
order to declare immovable property executable, the scope for a
court to
mero
motu
raise
issues is considerably widened.
[3]
The
full citation is
The
Standard of South Africa Limited and others v Thobejane and Others
[38/2019
and 47/2019] and
The
Standard Bank of South Africa Limited v Gqirana N.O. and Another
[999/2019]
[2021] ZASCA 92
(25 June 2021).
[4]
See,
for example, para 42.
[5]
At
para 88(3).
[6]
At
para 60.
[7]
At
para 14.
[8]
Magistrates’
Court Rule 43A.
[9]
See
Bosman
v Bredell
1932 CPD 385.
[10]
Dreyer
above
at para 9.
[11]
In
Bosman
above
the then Supreme Court was approached for process-in-aid to declare
executable the judgment debtor’s interests in
a trust where
the then Magistrates’ Court Act, 1917 did not allow for that
type of property to be executed against. In
Patel
v Manika and others
1969 (3) SA 509
(D) the Supreme Court was approached to declare
executable the judgment debtors’ interests in a deceased
estate where the
Magistrates’ Court Act, 1944 did not allow
for that type of property to be executed against. In
PMB
Hardware Wholesalers CC v Yusuf
2003 (2) SA 73
(N) the High Court was approached to
authorise
the
Sheriff to proceed with execution in relation to a magistrates’
court order as the property sought to be attached was
the execution
debtor’s claim against a third party and this did not
constitute ‘executable property’ under
the Magistrates’
Court Act.
[12]
At
para 23.
[13]
Contrast
to
Bannatyn
e
in para 3, where the
amicus
curiae
adduced empirical data on the state of the maintenance system in
South Africa and its effects on the rights of women and children
in
seeking effective relief under the Maintenance Act, 1988 and which
evidence gave context to the frailties inherent in the
functioning
of the maintenance system and on the promotion and advancement of
gender equality. The failings of the maintenance
system and the
paramount importance of advancing the interests of children featured
centrally in the Constitutional Court’s
finding in para 31
that there were ‘good and sufficient circumstances’ why
process-in-aid should be afforded by the
High Court in enforcing
maintenance orders granted in the maintenance courts.
[14]
The
applicant in
Dreyer
above similarly did not appear to appreciate that he was seeking a
form of process-in-aid and so was required to satisfy the
requirements for that relief: see para 10 and 11.
[15]
Paragraph
53.
[16]
Magistrates’
Court Rule 43A.
[17]
Para
25.
[18]
Giant
Properties (Pty) Limited v Govender
2004
CLR 27
(W) at 30-31, citing
Herbstein
and Van Winsen The Civil Practice of the Supreme Court in South
Africa,
4th edition (1997), at p 37. The same passage appears in the
fifth edition (2009) at p 44.
[19]
Charugo
Development Co (Pty) Limited v Maree N.O.
1973
(3) SA 759
(AD) at 764G/H.