Minister of Police v The Sheriff of the High Court, Mthatha and Another (2640/2020) [2021] ZAECMHC 19; 2022 (1) SA 229 (ECM) (29 June 2021)

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[2021] ZAECMHC 19
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Minister of Police v The Sheriff of the High Court, Mthatha and Another (2640/2020) [2021] ZAECMHC 19; 2022 (1) SA 229 (ECM) (29 June 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 2640/2020
In
the matter between:
MINISTER
OF POLICE

Applicant
and
THE SHERIFF OF
THE HIGH COURT, MTHATHA

1
st
Respondent
THE REGISTRAR OF
THE HIGH COURT, MTHATHA

2
nd
Respondent
JUDGMENT
MBENENGE JP:
Introduction
[1]
This application concerns a white Toyota Hilux T019 LDV CAB,
[1]
owned by the South African Police Service,
[2]
and allocated for use by the Ngqeleni police station.
[2]
Upon its attachment and removal from the police station, possession
of the motor vehicle has been retained
by the first respondent in
lieu of a demand for payment of execution fees allegedly owed by the
applicant.
[3]
The applicant seeks vindicatory and declaratory relief, the object of
which is to regain possession of
the motor vehicle. The first
respondent, on the other hand, seeks an order declaring the
applicant’s non-payment of the execution
fees wrongful and
unlawful.
Background
[4]
The salient facts of this case are, by and large, common cause.
During 2016 one Mr Mthuthuzeli Mahlosana,
[3]
as plaintiff, launched action proceedings out of this court under
Case No. 1630/2016 against the applicant and the Director of Public
Prosecutions
[4]
as first and
second defendants, respectively.
[5]
[5]
Upon closure of pleadings, the main action was set down for trial on
5 June 2019, on which date it was postponed
sine
die
with the applicant directed to pay
costs occasioned by the postponement.
[6]
Pursuant to the postponement order, a bill of costs allowing R80 640.
01 was taxed by the second
respondent at the instance of Majavu
Attorneys, who had been Mahlosana’s attorneys of record, on 2 July
2019.
[7]
The taxed bill culminated in demand being made, per letter dated 11
July 2019, for payment of the taxed
costs by the applicant and the
DPP.
[8]
On 19 November 2019, the second respondent issued a writ of execution
directing the Deputy Sheriff to
“
attach and remove the movable
property of the ...Execution Debtor, being MINISTER OF POLICE, whose
address hereof is c/o  STATION
COMMANDER, NGQELENI POLICE
STATION and for the same cause to be realised by  public auction
[in]
the sum of R80 640.01 in respect of taxed bill
of costs dated the 12
th
June 2019 and
further to pay costs of  collection commission and interest
[at
the]
rate of 9 percent per annum from
[the]
date hereof, in
the abovementioned case in favour of the Execution Creditor.
”
[9]
On 27 November 2019, the “
Deputy Sheriff Mthatha/Ngqeleni
,”
Majokweni, served a writ of execution under Case No. 1630/2016 citing
the execution debtor as being “
the Station Commander,
” and
placing under attachment-
“
2
X BAKKIES
10
X OFFICE DESKS
10
X OFFICE CHAIRS
10
X FILING CABINETS.”
On the face thereof,
the writ emanated from the Sheriff, “
H M Ntsikeni
.”
[10]
Pursuant to the writ referred to in paragraph 9 above, the motor
vehicle was removed from Ngqeleni Police Station
and is being stored
at the first respondent’s premises situated at 7 Beaufort Road,
Mthatha.
[11]   The
judgment debt was paid in full by the applicant’s attorneys on 21
February 2020, whereupon Majavu attorneys
addressed correspondence to
the Sheriff advising him of the payment and instructing him to
release the motor vehicle.
[12]
Despite the settlement of the judgment debt for which the motor
vehicle was attached and removed, demand for its
release has yielded
naught.
[13]
When the Sheriff eventually responded to the demand, he transmitted
an email addressed to the Mthatha civil litigation
section of the
Police Service “
Att Mr Mbeki,
” stating:
“
Please
find attached tax invoice of (1630/16 Mthuthuzeli Mahlosana v MEC of
Police
[6]
).”
[14]   The
tax invoice pertains to the Sheriff’s fees, storage charges, and
security charges of the motor vehicle calculated
from 6 February 2020
to 16 July 2020.
[15]
Messrs Mbulelo Qotoyi attorneys (the Sheriff’s attorneys) addressed
a letter dated 6 August 2020 responding to
the letter previously
penned by the applicant’s attorneys, worded as follows:
“
1.
Letter written by Messrs Majavu and Associates is not disputed,
however the aforesaid Attorneys
were telephonically advised by our
client that they will release the vehicle upon payment of Sheriff
costs and storage.
2.
We further advise that an invoice to that effect was drawn up and
served to your
client, we attach the same for your ease of reference.
3.
Client has now drawn up revised invoice for your client’s attention
and payment.
Kindly advise your client to pay and client will release
the vehicle upon presentation of proof of payment.”
The main
application
[16]   The
present proceedings were launched on 17 August 2020, with the
applicant suing in a nominal capacity as the repository
of executive
functions over the Police Service.
[17]   The
first respondent is cited in his official capacity as also in his
personal capacity as, in the view of the applicant,
the conduct
complained of also warrants such manner of citation.
[18]   The
second respondent has been cited purely out of caution on the basis
that he issued the writ that culminated in
the attachment and removal
of the motor vehicle.
[19]   The
relief sought in the main application is the
rei vindicatio
-
an order directing the first respondent to release the motor vehicle
to the applicant.  Relief of a declaratory nature is also
being
sought.
[20]   The
declaratory relief seeks to assail the attachment, removal, and
retention of the motor vehicle as being unconstitutional,
unlawful,
and invalid, on the bases that -
[20.1]
in attaching and removing the motor vehicle, the first respondent did
not give heed to the procedure outlined in the
State Liability Act,
1957
;
[7]
[20.2]
it is impermissible for the first respondent to retain the motor
vehicle
on the basis of a creditor’s lien;
[20.3]
any right to remove the motor vehicle on the part of the first
respondent
was extinguished upon the discharge in full of the
judgment debt; and
[20.4]
the first respondent is not entitled to retain the motor vehicle on
the
basis of the unlawful imposition of unreasonable execution
charges.
[21]
Costs are sought against the first respondent on the punitive
attorney and client scale, principally on the basis
that the conduct
of the first respondent is egregious, constitutes an abuse of his
office, and a breach of the Code of Conduct by
which the first
respondent is bound.
[22]
The affidavit filed in support of the application is deposed to by Mr
Sabelo Mbeki
qua
commander of the Mthatha civil litigation command centre and the
designated functionary of the Police Service responsible for all
civil litigation against the Minister of Police arising from the
jurisdictional area of this Court.
[23]   The
application is opposed by the first respondent.  To that end, Mr
Methusi Humphrey Ntsikeni, the Sheriff
of the High Court, Mthatha,
deposed to the answering affidavit wherein he contends that-
[23.1]
the relevant provisions of the Act were complied with prior to the
removal
and retention of the motor vehicle, more particularly in that
the accounting officer of the Police Service was notified of the
intention
to remove the motor vehicle and subsequent thereto, of its
retention in lieu of outstanding execution costs and did not object
thereto;
and
[23.2]
the first respondent is entitled to retain the motor vehicle pending
the payment of the execution costs.
[24]   For
reasons that will become clearer later, it is necessary to set out
copiously the steps allegedly taken by the
first respondent in giving
effect to
section 3
of the Act.  His affidavit, in relevant
part, reads:
“
10.
On or about 27 November 2019 I attached the applicant’s motor
vehicle . . . acting in terms of warrant
of attachment attach herein
marked “
SM7
”in
the applicant’s founding affidavit.
10.1
Before I attach[ed] the motor vehicle on 27 November 2019, I
presented the warrant of attachment to Mr
Mbeki, the accounting
officer of the applicant, I explained the nature and the exigency
thereof to him, we then agreed that I can
attach the motor vehicle,
in fact it was pointed out by him as the property to be attached.
11.
After the motor vehicles concerned were attached, I personally
informed the accounting officer
of the applicant that if no payment
is received, I will then remove the motor vehicle concerned for the
purposes of sale. The applicant
did not engage me relating to
objection to the motor vehicle being attached and removed. I then
took it as if applicant has no objection
to the motor vehicle being
attached and removed.
12.
On the 26 February 2020, after having not received objection from the
applicant relating to
removal of the motor vehicle or pointing by the
applicant of the alternative property I may attach, I then acted in
terms of section
3 (7)(c) of the State Liability Amendment Act 14 of
2011. I then removed one motor vehicle for the purpose of sale to
satisfy the
judgment debt against the applicant, this also includes
payment in satisfaction of my office storage and security costs. I
could
not locate the second vehicle at the time.
13.
The motor vehicle was then attached
and removed for the purpose of sale not for the purposes as
is
alleged by the applicant.
14.
The applicant is fully aware of the
aforesaid warrant.
At
all material times, with the applicant aware of matters in which the
motor vehicle concerned has been attached and removed for,
the
applicant has never made an application in terms of section 3(10) .
. . , objecting to the removal of the aforesaid motor vehicle
on the
basis that the continued attachment would disrupt service delivery,
threaten life or put security of the public at risk
and/or suggest
that the continued attachment is not in the interest of justice.
”
[25]   The
second respondent has remained supine, presumably because the writ of
execution he issued is not being assailed.
The
counter-application
[26]   The
counter-application is a quest for an order declaring the applicant’s
non-payment of execution fees in the
sum of R106 398 wrongful
and unlawful. Besides praying for a costs order, the first respondent
also seeks a
mandamus
directing the applicant to pay the fees
“
together with storage and security costs
. . .
computed
from the date of attachment to the date of final payment
. . .
within thirty days
[from the date of the grant of the order
sought in the counter application].”
[27]   The
applicant is opposed to the grant of the relief sought by the first
respondent. It is contended that the relief,
in particular the
imposition of the charges by the first respondent, is without lawful
basis, hence the declarator sought by the
applicant in the main
application. Motion proceedings, contends the first respondent, are
not suited for determining charges that
were not, in the first place,
agreed upon.
The law
[28]
The
rei
vindicatio
is
premised on the notion that an owner may not be deprived of his or
her property against his or her will, and is entitled to recover
property from any person who retains possession of it without his or
her consent.
[8]
[29]
Therefore, no other person may withhold property from the owner
unless he or she is vested with some right enforceable
against the
owner such as a right of retention against the owner or a contractual
right.
[9]
[30]
It is trite law that possession should also be lawful in order to be
a valid defence against the
rei
vindicatio
.
[10]
[31]
An owner who institutes the
rei
vindicatio
is required to allege and
prove that-
[31.1]
he or she is the owner of the thing;
[31.2]
the thing was in the possession of the defendant at the commencement
of the action; and
[31.3]
the thing which is vindicated is still in existence and clearly
identifiable.
[11]
[32]
The onus to establish any right to retain possession of the thing
always rests on the defendant
[12]
as long as the owner does not go beyond alleging his or her ownership
and the fact that the thing is in the possession of the
defendant.
[13]
[33]
In
Goudini
Chrome (Pty) Ltd v MCC Contracts
[14]
the Supreme Court of Appeal stated:
“
The
real question in this appeal is whether- to quote from the above
dictum- the respondent is invested with ‘
n
reg wat teen die eienaar  geld. . . om die saak te hou’
-
in this case a right of retention. And with that question the focus
shifts from possible deficiencies in the appellant’s case
to the
merits of the respondent’s defence.”
[34]
In this matter, ownership of the motor vehicle by the applicant and
the possession thereof by the first respondent have
been made common
cause between the parties. It is also not in dispute that the motor
vehicle being vindicated is still in existence
and clearly
identifiable.  Save the quest for declaratory relief, which
flows from alleged unlawful conduct on the part of the
first
respondent, the applicant has not gone beyond alleging the requisites
for the grant of the
rei vindicatio
.
[35]
In
Krugersdorp
Town Council v Fortuin
[15]
the court held:
“
There
is a wealth of authority on this point, none of which departs from
the clear statement in
Graham
v Ridley
.
[16]
The mere fact that a plaintiff is owner entitles him to possession
and he need not state that the defendant is in wrongful possession.
It is for the defendant to plead on what basis he claims he is
entitled to possession.”
[36]   Here,
too, it is incumbent on the first respondent to establish entitlement
to retain possession of the motor vehicle.
That issue falls to be
determined first as, in my view, it is dispositive of both the main
application as also the counter-application.
Retention of the
motor vehicle on the basis of a creditor’s lien
[37]   The
first respondent is refusing to release the motor vehicle based on a
creditor’s lien in respect of execution
fees, which he alleges are
owing and payable to him.
[38]
It is trite law that the imposition of a creditor’s lien is valid
only in circumstances where there is a contractual
nexus between the
parties in terms of which each of the parties undertakes reciprocal
obligations one of which must be payment of
the contract price.
[17]
[39]   It
being common cause that the first respondent is retaining the motor
vehicle in respect of unpaid charges, there
is no contractual nexus
between the parties, and it is not available to the first respondent
to rely on the existence of a creditor’s
lien.
[40]   The
first respondent is accordingly precluded from seeking to recover
execution charges from the applicant.
[41]   In
these circumstances, the imposition of a creditor’s lien in the
absence of a right to do so arising either in
contract or another
cognisable ground falls to be set aside as unlawful and invalid.
The attachment of
the motor vehicle in contravention of the Act
[42]   The
Act seeks to regulate the satisfaction of final court orders sounding
in money against the State or against any
property of the State.  It
details stages for the satisfaction of judgment debts against the
State.  Each one of the stages
makes provision for situations of
non-payment until, finally, the stage that culminates in the
attachment of the movable property
of the State.  These stages
are adumbrated below.
[42.1]
The relevant department must ensure that payment of the money is
satisfied
within 30 days from the date that the court order becomes
final or within a time period agreed upon by the judgment creditor
and
the accounting officer of the relevant department.
[18]
[42.2]
If payment is not made within 30 days or as agreed then the judgment
creditor may, in order to enforce the judgment, serve in terms of the
Rules of Court, the court order on-
(a)
the executive
authority;
(b)
the accounting
officer of the relevant department;
(c)
the State Attorney
or other attorney acting for the department concerned; and
(d)
the
relevant treasury.
[19]
[42.3]
The relevant treasury must within 14 days of service of the court
order
ensure that the judgment debt is satisfied or in the event that
there are not sufficient funds available make payment within the
time
frame agreed to with the judgment creditor.
[20]
[42.4]
If payment is not made within 14 days or as agreed then the judgment
creditor may issue a writ or warrant of execution in terms of the
Rules of the applicable court against the department, which can
only
be made against the movable property owned by the state and used by
the relevant department.
[21]
[42
.5]         Once the writ or
warrant is issued, the Sheriff “
must
”
attach the movable property but not remove the same.
[22]
The Sheriff and the accounting officer of the relevant
department may agree on the property owned by the State that may not
be attached, removed, or sold in execution because it would severely
disrupt service delivery, threaten life or put the security
of the
public at risk.
[23]
Absent
such agreement, the Sheriff may attach the movable property to
satisfy the judgment debt.
[24]
[42.6]
At the expiry of 30 days from the date of attachment, the Sheriff may
remove and sell the attached property in execution of the judgment
debt.  At this point, the Rules of Court become applicable.
[25]
[42.7]
In the event of a party with a direct or material interest in the
matter
being of the view that the attachment and removal would
severely disrupt service delivery, threaten life, put the security of
the
public at risk, or would not be in the interests of justice, then
such party may apply to court for a stay before the sale of the
attached property.
[26]
[43]   No
stretch of imagination is required in order to conclude that the
provisions of section 3 were not complied with
by the first
respondent.
[44]
Nothing points to the first respondent as having interacted with the
executive authority or the applicant’s attorneys
in any meaningful
way. The accounting officer who, in terms of
section 36(2)(a)
of the
Public Finance Management Act 1 of 1999
,
[27]
is the national commissioner of the Police Service, was also not
consulted during the impugned process.  Neither Colonel Mbeki
nor General Billet with whom the first respondent allegedly
interacted is the accounting officer of the Police Service.  On
the first respondent’s showing, at no stage was the relevant
treasury ever afforded the opportunity to discharge the writ.
[45]   The
first respondent’s answering affidavit is replete with further
incongruities.  Annexure “
SM7
” purporting to be the
copy of the relevant writ of execution belies the first respondent’s
assertion that section 3 of the Act
was complied with.  In his
affidavit, the first respondent would have this Court believe that
when he attached the motor vehicle
he interacted with Mr Mbeki to
whom he presented the writ.  This flies in the face of annexure
“
SM7
” which points to the writ as having been served by
the deputy sheriff (Mr Majokweni) at Ngqeleni police station, not at
the PRD2
building on Mr Mbeki, as alleged by the first respondent.
[46]   The
annexure also does not state who the writ was served upon.  It
makes mention of office equipment about which
the first respondent’s
affidavit is mum. Nor does the annexure mention that the nature and
exigency of the writ was explained to
the person upon whom service
was effected.
[47]
Therefore, the attachment and removal of the motor vehicle
contravened the provisions of the Act and are, therefore,
liable to
be set aside as unlawful.
The unlawfulness
of the retention on other bases
[48]
In the first place, a finding that the attachment was not lawful
results in the conclusion that the retention of
the relevant item is
unlawful.  Moreover, and in any event, an item lawfully attached
and removed ought to be sold. The Sheriff
is not entitled to retain
the motor vehicle indefinitely or to retain the motor vehicle and
allow storage charges to accrue thereon.
[28]
He is under an obligation, within a reasonable period, to
either sell the property attached and removed by public auction or
release it to the State.  To the extent that the Sheriff must
recover the amount of the judgment debt from the proceeds of the
sale
of the motor vehicle, he is obliged to sell the motor vehicle and not
retain the same for the accumulation of the exorbitant
fees, which
is, in any event, precluded by the writ. These shortcomings render
the continued retention of the motor vehicle unlawful
and liable to
be set aside.
[49]
There is a further reason why the retention of the motor vehicle is
unlawful. The judgment debt for which the writ
was issued was
discharged in full. The purpose of the execution procedure is to
satisfy an unpaid judgment debt.  In this instance,
that purpose
fell with the discharge of the judgment debt.
The demise of the
counter-application
[50]
The first respondent has not established his right to retain the
motor vehicle. Certainly not for non-payment of storage
fees and
security costs allegedly due to him.
[51]   As
submitted by Mr
Solomon
who, together with Ms
Pillay
,
appeared for the applicant, motion proceedings would, in any event,
not be the appropriate forum for a quest to recover the alleged
costs
or fees. The dispute of fact in relation thereto would be irresoluble
on the papers.
Conclusion
[52]
The applicant is entitled to the relief he is seeking. The nature of
the dispute in the main application coupled
with the relief sought in
the counter-application justifies the grant not only of the
rei
vindicatio
,
but the detailed declaratory relief sought by the applicant. The
first respondent flouted procedure prescribed by the Act in the
manner and to the extent already pronounced upon, with the result
that his conduct is unlawful. More importantly, on the authority
of
Fedsure
[29]
and
Pharmaceutical
Manufacturers
,
[30]
the first respondent breached the principle of legality, which
renders his conduct unconstitutional.
[53]   The
corollary of the conclusion reached on the main application is that
the counter-application must fail.
Costs
[54]   No
grounds or special circumstances have been shown to warrant a
departure from the general rule that costs follow
the result and that
the applicant should be awarded his costs. Mr Mhambi, counsel for the
first respondent, did not contend otherwise.
Scale of costs
[55]
Costs are sought on the scale as between attorney and client,
including those of two counsel. Both in the heads of
arguments and at
the hearing of this matter, the applicant’s counsel, rightly so,
did not press for an order for personal costs.
Indeed, an order for
personal costs against a person acting in a representative capacity
is in itself inherently punitive.
[31]
In my view, such a course is not justified in the present matter.
[56]
It is trite law that costs are in the discretion of the court to be
exercised judicially upon a consideration of
the relevant facts and
must be fair to the parties.
[32]
[57]
The following remarks relating to an award of punitive costs on an
attorney and client scale in
Public
Protector
[33]
are helpful:
“
[221]
. . . An award of punitive costs on an attorney
and client scale may
be warranted in circumstances where it would be unfair to expect a
party to bear any of the costs occasioned
by litigation.
[222]
The question whether a party should bear
the full brunt of a costs
order on an attorney and own client scale must be answered with
reference to what would be just and equitable
in the circumstances of
a particular case. A court is bound to secure a just and fair
outcome.
[223]
More than 100 years ago, Innes CJ stated
the principle that costs on
an attorney and client scale are awarded when a court wishes to mark
its disapproval of the conduct of
a litigant.
[34]
Since then this principle has been endorsed and applied in a long
line of cases and remains applicable. Over the years, courts have
awarded costs on an attorney and client scale to mark their
disapproval of fraudulent, dishonest or
mala
fides
(bad faith) conduct; vexatious conduct; and conduct that amounts to
an abuse of the process of court.”
[35]
[58]
This court was urged to consider the fact that prior to the
institution of the instant proceedings, the applicant’s
attorneys
had addressed a letter to the first respondent, which did not result
in the return of the motor vehicle; the conduct is
egregious in that
it constitutes a breach of the first respondent’s Code of Conduct
by which he is bound;
[36]
that
the first respondent is held in high esteem, to a high standard, and
it is required of him to respect and uphold the law; and
that the
applicant should not be out of pocket on account of the first
respondent’s conduct which has caused the applicant to
unnecessarily
waste public funds to recover possession of the motor
vehicle.
[59]
These concerns are legitimate. However, the applicant is not without
blame. That factor should not be eschewed in
the court’s exercise
of its discretion. The adage that one should first look at the speck
of sawdust in one’s own eye and pay
attention thereto, before
pointing to the speck in the other’s eye finds expression on this
score.
[60]
At the time the relevant costs order was obtained and the resulting
bill of costs taxed, the applicant was represented
by the State
Attorney upon whom it is incumbent to act in the best interest of
government. The Act casts a duty on departments to
ensure that court
orders are satisfied by departments without any delay.
[37]
In certain circumstances, an accounting officer who fails to ensure
the satisfaction of court orders and adherence to section 3 of
the
Act may end up being liable for misconduct in terms of the PFMA.
[61]
Section 195 of the Constitution sets out basic values and principles
governing public administration. These values
and principles apply to
the Police Service. More importantly, section 195(1) (a) sets a high
standard of professional ethics on the
part of public servants;
people’s needs must be responded to;
[38]
and public administration must be accountable.
[39]
Section 2 of the Constitution provides that obligations imposed by
the Constitution must be fulfilled.
[62]   In
the present matter can it be said that, after the demand for payment
of the costs had been made, the first respondent
acted with due
diligence in the manner contemplated in section 3 of the Act and
section 195 of the Constitution? The answer to this
question is not
far to seek.
[63]   The
costs order which is the genesis of this application was issued on 5
June 2019. The bill was taxed on 2 July
2019 and payment pursuant
thereto demanded on 11 July 2019. No payment was forthcoming from the
applicant’s camp. This resulted
in a writ being obtained on 19
November 2019.  Attachment, albeit purportedly, was made on 27
November 2019, and the motor vehicle
removed from Ngqeleni police
station soon thereafter.  Payment pursuant to the taxed bill was
only effected on 21 February 2020,
more than 6 months after demand
for payment had been made. This demonstrates a lackadaisical attitude
on the part of the first respondent,
which has not been explained.
[63]
This matter is of importance to the parties.  It involves a
complex question of law that hinged on an interpretation
to be given
to relatively new provisions.
[40]
In my view, it warranted the engagement of two counsel, whose
handling of the case was of great assistance in the navigation
of the
relevant issues.
Order
[64]   The
following order is made:
(a)
The first respondent is directed to
forthwith restore possession of a white 2014 Toyota Hilux T019 LDV
CAB (the motor vehicle) to
the applicant.
(b)
The conduct of the first respondent
in -
(i)
attaching and removing the motor
vehicle in contravention of the procedure set out in the
State
Liability Act 20 of 1957
and for purposes other than to sell the
motor vehicle;
(ii)
retaining the motor vehicle on the
basis of a creditor’s lien;
(iii)
retaining the motor vehicle despite
the payment of the judgment debt in respect of which the motor
vehicle was attached; and
(iv)
imposing security charges and
storage fees over the motor vehicle despite payment of the judgment
debt,
is declared
unconstitutional, unlawful and invalid.
(c)
The first respondent shall pay
costs of this application, which costs shall include those consequent
upon the engagement of two counsel.
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Applicant’s
counsel
:
R A
Solomon SC (
with him
K Pillay)
Applicant’s
attorneys
Mvuzo Notyesi Incorporated
Mthatha
First respondent’s
counsel
:
M
Mhambi
First respondent’s
attorneys
:           Mbulelo
Qotoyi Attorneys
Mthatha
Date
matter heard (virtually)
:           29
April 2021
Date
judgment delivered
:
29 June 2021
[By electronic mail
transmitted to the parties’ attorneys, in terms of paragraph 68 of
the Eastern Cape National State of Disaster
Management Directions]
[1]
Herein
after conveniently referred to as “
the
motor vehicle
.”
[2]
Otherwise
referred to as “
the
Police Service
.”
[3]
Herein
after conveniently referred to “
Mahlosana
.”
[4]
The
DPP.
[5]
The
main action.
[6]
Sic
[7]
Act
20 of 1957 (the Act).
[8]
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20B, where it was explained that one of the
incidents of ownership is the entitlement of ‘
exclusive
possession of res, with the necessary corollary that the owner may
claim his property wherever found, from whosoever holding
it
.’
[9]
Hefer
v Van Greuning
1979 (4) SA 952
(A) at 959.
[10]
Hako
v Minister of Safety and Security
and
Another
1996 (2) SA 891 (Tk).
[11]
Port
Nolloth Municipality v Xhalisa and Others
,
Luwalala
v Port Nolloth Municipality
1991 (3) SA 98
(C) at 110 – 111; also see
Khuzwayo
v Dludla
[2000] 4 All SA 329
(LCC) at 334 d.
[12]
Free
State Agriculture and Eco Tourism Development (Pty) Ltd v Mthembu
and Mohammed
2002 (5) SA 343 (O).
[13]
Jeena
v Minister of Lands
1955 (2) SA 380
(A);
Chetty
v Naidoo
at 20 C;
Khuzwayo
at 334 e
[14]
[1992] ZASCA 208
;
1993
(1) SA 77
(A) at 84 I.
[15]
1965
(2) SA 335
(T) at 336 G – 337 B.
[16]
1931
TPD 476
at 479.
[17]
Goudini
,
above n 13, where, at page 85 D - F it was held:
“
A
debtor and creditor lien is available to anyone who, in terms of an
agreement, has performed work pertaining to someone else’s
property, irrespective of whether the work was necessary, useful,
enhanced the value of property concerned or was trifling. A debtor
and creditor lien, being a contractual remedy and not a real right,
is maintainable by the one party to a contract against the
other who
may or may not be the owner of the property. Unlike an enrichment
lien it is not limited in its scope: it secures the
full extent of
the agreed remuneration, regardless of his own actual expenditure or
the other side’s actual enrichment.” (cases
omitted)
[18]
Section
3 (3) (a) of the Act.
[19]
Section
3(4).
[20]
Section
3(5).
[21]
Section
3(6).
[22]
Section
3(7) (a).
[23]
Section
3(7) (b).
[24]
Section
3(7) (c).
[25]
Section
3(8).
[26]
Section
3(9).
[27]
The
PFMA.
[28]
BG
Bojosinyane and Associates v Van Staden
2017 JDR 0912 (NCK)
[29]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (CC).
[30]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa and
Others
(CCT31/99)
[2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February
2000).
[31]
Public
Protector v South African Reserve Bank
[2019] ZACC 29
;
2019 (9) BCLR 1113
(CC)
2019 (6) SA 253
(CC), at
para 220.
[32]
Wanderers
Club v Boyes-Moffat and Another
2012 (3) SA 641
(GSJ) at 643h – 644b.
[33]
Supra
,
above n 30
[34]
Orr
v Solomon
1907 TS 281
[35]
Also
see
Plastic
Converters Association of South Africa on behalf of members v
National Union of Metal Workers of SA
[2016] ZALAC 39
; [2016] 37 ILJ 2815(LAC), where the Labour Appeal
Court held, in the context of non-constitutional matters, that-
“
[t]he
scale of attorney and client is an extra ordinary one which should
be reserved for cases where it can be found that a litigant
conducted itself in a clear and indubitably vexatious and
reprehensible conduct. Such an award is exertional and is intended
to
be very punitive and indicative of extreme opprobrium.”
[36]
Section
14.1 of the Code provides that a Sheriff may not act in any way that
will bring the good name and esteem of the office of
the Sheriff in
particular, and the administration of justice in general, into
disrepute.
[37]
Section
3 (11) of the Act.
[38]
Section
195 (1) (e).
[39]
Section
195 9(1) (f).
[40]
The
provisions of the
State Liability Act, 1957
in respect of a final
order sounding money against a department were amended significantly
by Act 14 of 2011 and Act 8 of 2017.