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[2017] ZANCHC 67
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BG Bojosinyane and Associates v Van Staden (CA&R77/2015) [2017] ZANCHC 67 (26 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA &R 77/2015
Heard
on: 02/05/2017
Delivered
on: 26/05/2017
In
the matter between:
BG
BOJOSINYANE & ASSOCIATES
Appellant/Defendant
And
SHERIFF:
JH
VAN
STADEN
Respondent/Plaintiff
Coram:
Kgomo JP et Williams J et Mamosebo J
JUDGMENT
Order
1.
The appeal is
upheld.
2.
The Magistrate's judgment and order are set
aside.
3.
Each party is ordered to pay his own costs
i
ncluding
the costs of the
appeal.
KGOMO
JP
1.
I have read the judgment of my sister Mamosebo J (the scribe)
and the separate judgment by my sister Williams
J and concur in both
judgments. In my view these judgments complement each other and come
to the same conclusion. Williams J also
endorses the factual
assessment and conclusions by Mamosebo J but deals with additional
legal aspects. In the result the judgments
underscore the extent to
which the district Magistrate misdirected himself and why the appeal
has to fail.
MAMOSEBO
J
[2]
The appellant, Mr Boemo Granch Bojosinyane, is the defendant in an
action which served before Acting Magistrate C Prinsloo in
Hartswater, Northern Cape Province. He appeals against the judgment
and order of the Magistrate who found the plaintiff to have
succeeded
in his claim and ordered him to pay an amount of R33 040.29 with
costs.
[3]
This appeal was initially argued before Williams J and myself
but we were unable to agree on the outcome. The Judge President,
Kgomo
JP, has therefore constituted a full bench to hear the appeal
in terms of s 14(3) of the Superior Court Act, 10 of 2013. The
parties
were in addition directed to file supplementary written
submissions pertaining to the aspect whether an attorney can be held
legally
liable to a third party for the acts or omission of his
client, with particular reference to the facts
in
casu.
[4]
The appellant is an admitted attorney who practices under the name
and style: BG Bojosinyane & Associates. It is common
cause that
he was the instructing attorney in another matter, MF Modisa v HP
Motaung under Case No 453/2010, wherein
his client, the
judgment creditor, was the successful party. He consequently obtained
a Warrant of Execution on the judgment debt
in the amount of
R30
851.00
in his client's (Mr Modisa's) favour, as a result of which
a Boer Bull Trailer with registration letters and numbers [E...] was
to be sold in execution to satisfy that judgment debt.
[5]
I am mindful of the fact that a plaintiff may choose a party against
whom to institute action if either of them may be held
liable.
However, it remains inexplicable why Mr Modisa, for whom the
appellant acted, was not cited as a party. Adv Jankowitz,
appearing
for the sheriff, submitted that the only reason for the appellant's
sole citation was that he gave the sheriff instructions
and the
sheriff had to render the account to him.
[6]
It is apposite to remark on the plaintiff's (sheriff's) amended
particulars of claim. It is incumbent upon parties in any litigation
to ensure that pleadings are drafted in clear and unambiguous terms.
Rule 6 of the Magistrates' Court Rules stipulates:
(4)
"
Every pleading shall contain
a
clear and
concise statement of the material facts upon which the pleader relies
for his or her claim
,
defence or answer to any
pleading
,
as
the case may be
,
with sufficient particularity to enable the opposite party to
reply thereto.
(6)
A party who in such party
'
s pleading relies upon a
contract
shall state whether the contract
is
in
writing
or oral
,
when, where
and
by
whom
it
was
concluded
,
and if
the contract
is
in
writing
a copy thereof or the
part relied on
in
the pleading shall be annexed to the
pleading
."
[7]
Para 3 of the Amended Pleadings reads:
"
Op
of ongeveer Junie 2012 het die eiser die verweerder in kennis gestel
dat die verweerder
se
klient
'
n sekere sleepwa
aan die eiser oorhandig het. Die verweerder het derhalwe die eiser
opdrag
verskaf
vir die gepaargaande bes/aglegging op
die
sleepwa en oak
om
toe te sien tot die
verkoping van die sleepwa.
"
The
terms of the oral agreement are not set out with sufficient
particularity. Mr Jankowitz submitted that in the absence of any
exception being taken to the pleadings and the fact that the
appellant has pleaded comprehensively thereto a good cause of action
was made out. This argument is fallacious because where a shortcoming
in the pleadings is glaring a court cannot turn a blind eye
just
because no exception was taken.
[8]
On 31 March 2012 the appellant addressed a fax to the respondent, as
the sheriff in Hartswater, instructing him to attach the
said trailer
at the execution creditor's place at 24 Strydom Street, Hartswater.
It later transpired that the given address was
incorrect but the
sheriff had already made two attempts at executing the process. He
charged a fee for those attempts and was paid
for his services. The
appellant expressed his dissatisfaction with the sheriff in these
terms in a letter dated 16 April 2012:
"
We
refer to the warrant of execution in the above matter and
have
to express our dissatisfaction in the manner in which you are
handling it
as
well
as
the frequent payments we have
been
making to you for your
executions
.
While
we accept responsibility for the incorrect address previously stated
in the warrant, we confirm that the address was later
corrected. We
further advised you and your lady secretary by telephone that the
Boer Bull Trailer registered [E...] which belonged
to the debtor was
in our client (creditor's) premises.
We
further faxed to your office the letter, copy whereof
is
enclosed
,
on the 12 November 2011 stating clearly
that Mr and Mrs Modisa are seldom at home during the day as they are
business
people
.
As
a result of your delay, our client decided to take the trailer to
Pampierstad because of lack of storage space.
We
shall therefore have to
discuss
with you your fee for recent 2
[two] attempts (one attempt would have been reasonable and
sufficient)
.
As
Taung is far from Vryburg where Taung sheriff will tow the trailer to
for purposes of sale
,
we request you to arrange with
us the date on which you will be proceeding to our client's place
([...] S. S.) to attach the trailer.
We will arrange that it be taken
back there.,,
(Own emphasis)
[9]
On 26 April 2012, ten days later, and in response to the appellant's
aforementioned letter, the sheriff responded by letter:
"Met
verwysing na u skrywe gedateer 16 April 2012.
Ben
Segoni
is
die tuinier by
hierdie adres
[I
presume this was referring to [...] S. S.]
en die man wat my
telkens meegedeel het dat die wa nie by die adres
was
nie
.
Die wa word
daagliks gebruik by die
besigheid in Pampierstad. Hy het aan my gese dat die wa nie by
hierdie huis gebere word nie, maar iewers
in Pampierstad.
U
moet my nie beskuldig van agterlosigheid nie
;
aangesien
ek werklik nie elke dag na hierdie huis toe kan
ry
om
te gaan kyk of die sogenaamde wa daar is nie
.
lnteendeel
was ek meer as twee maal by hierdie huis om te kyk vir die wa, maar
was die hekke ges/uit en kon ek niemand daar vind
nie. Ek het u slegs
vir
2
pogings laat betaal.
Ek is bewus
daarvan dat hierdie man en vrou besigheids persone is en selde by die
huis is.
U
sat albei hierdie pogings betaal, aangesien ek dit nie sat afskryf
nie.
U kan my telefoonnommer aan Taung Balju deurgee en
sodra hy die wa in my jurisdiksie het, sat ek voortgaan om
daarop beslag te le.
(Own emphasis)
[10]
Had regard been had to the appellant's aforementioned letter in para
7 (above), the sheriff would not have visited this place
unarranged
and the response in para 8 above would have been avoided. The sheriff
did not have to hear it from a gardener because
the letter dated 16
April 2012 had already informed him of the situation and appellant's
request to notify him of the day on which
he needed to carry out the
attachment.
[11]
Despite the fact that the letter dated 16 ApriI 2012 was, in my view,
clear and unambiguous but contrived to be misunderstood
or
misinterpreted by the sheriff, the appellant wrote another letter
(dated 30 April 2012) in which he not only withdrew part of
what he
said in his previous letter but also agreed that his client or his
firm was liable to settle the sheriff's
costs in full. It
is common cause that all accounts in respect of the non-service were
settled. This last sentence of the appellant's
letter is however
significant:
"We
are contacting our clients to arrange return of the trailer to his
house at Hartswater and to advise you in that regard.
The warrant of
execution is being returned to you."
(Own
emphasis)
[12]
It is also common cause that the appellant's client removed the said
trailer from Pampierstad
and took it directly to the sheriff
,
an action evidently not agreed upon with his attorney. It is
unclear whether by doing so his client was on a frolic of his own or
was an innocent act with the hope of expediting the process. Be that
as it may, on 21 June 2016, 52 days later, the sheriff wrote
to the
appellant confirming that the trailer was in his possession and would
charge a storage fee of R30.00 (thirty rand) per day
with effect from
18 June 2012 until the trailer was removed. The sheriff concluded the
letter by enquiring from the appellant after
the whereabouts of the
execution debtor to enable him to execute the Warrant of Execution.
The appellant only responded on 12 July
2012. The address furnished
by him was [...] T. S., Galeshewe, Kimberley.
[13]
Of further importance is the aspect of the delay by the sheriff to
finalise his legal obligations. It is common cause that
the
trailer was kept by the sheriff in storage for a period of two years.
A
sheriff should only attach property (the said trailer)
after demanding payment from a judgment debtor.
See Rule 41
(1)(a) of the Magistrates' Courts Rules. This was not done. The
appellant, as legal representative, did not explain
the reasons
why he did not request the Kimberley sheriff, Mr Seema, to
serve the Warrant of Execution instead of persisting
with the
Hartswater sheriff who lacked the required jurisdiction to execute in
Kimberley. Despite the jurisdictional impediment
the appellant
undertook to provide the respondent sheriff with the Notice of Sale
and Security after the service.
[14]
We already know that the sheriff did not demand payment of the R30
851.00 from the judgment debtor, the late Mr Motaung. Hence
the
trailer was delivered to him by Mr Modisa. Despite that the sheriff
failed to draw up an inventory and make a valuation of
the trailer as
required by Rule 41(1)(a) and (b). Although the trailer was
never lawfully attached by the sheriff it remained
in his custody.
Rule 41(f)(i) further stipulates:
"
Unless
an order of court is produced to the sheriff requiring him
or
her to detain any movable property under attachment for such further
period as may be stipulated in such order
,
the sheriff
shall, if a sale in respect of such property is not pending
,
release from attachment any such property which has been
detained for
a
period exceeding four months.
"
[15]
The question that also falls for determination is whether the period
of two years during which the sheriff kept the trailer
was
reasonable or not. Mr Jankowitz argued that taking into account what
transpired during this period and the fact that
the sheriff was
rendering monthly accounts to the appellant, the delay was
reasonable. I cannot agree. Leaving the delay open-ended
i.e without
a limitation or timeframe is a sure recipe for abuse.
Had the sheriff complied with the Magistrates
Court Rules this
situation could have been avoided.
[16]
From the provisions of Rule 41(7), quoted in full hereunder, it is
disconcerting that the sheriff having received the trailer
directly
from the judgment creditor and, as already stated, without
having
effected
an attachment, provisions:
"
(7)(a)
The execution creditor or his or
her
attorney shall
,
where movable
property
,
other than specie or documents
,
has
been attached
,
after such notification of
such attachment
,
instruct the sheriff in writing,
whether the property shall be removed to a place of
security
or left upon the premises in the charge and
custody of the execution debtor or in the charge and custody of
some
other person acting on behalf of the sheriff: Provided that the
execution creditor or his or her attorney may
,
upon
satisfying the registrar or clerk of the court, who shall endorse his
or her approval on the document containing the instructions,
of the
desirability of immediate removal
upon issue of the
warrant of execution
,
instruct the sheriff in writing
,
to remove immediately from the
possession
of the
execution debtor all or any of the articles reasonably
believed by the execution creditor to be in the
possession
of
the execution
debtor.
(b)
In the absence of any instruction under paragraph (a)
,
the sheriff shall leave the movable property
,
other
than specie or documents
,
on the premises and in the
possession
of the person
i
n whose
possession
the said movable property
is
attached.
"
In
my view there was neither urgency nor any need for the sheriff to
keep the said trailer in his storage especially when there
was an
option for Mr Modisa to keep it in his possession until the sale
in execution was arranged after having followed the required
procedural
steps. (Own emphasis)
[17]
In an undated handwritten fax, which according to the appellant may
have been written on the 04 December 2012, an enquiry was
directed to
the sheriff for him to indicate whether the trailer had been sold and
to contact him urgently on his cellphone on the
numbers reflected on
that facsimile. The sheriff responded the following day, 05 December
2012, interestingly as follows:
"Met
verwysing na u faks sonder datum ontvang op 04.12.2012.
Ek kan
ongelukkig geen veiling hou as ek nie 'n Kennisgewing van Verkoping
ontvang het nie.
Ek het u wel destyds in kennis gestel dat die
Balju vir Kimberley die kennisgewing van beslaglegging moes beteken
op die verweerder.
Die balju het my persoonlik verwittig dat hy
nie 'n diens aan u kan
lewer alvorens u sy rekening betaal nie. U
het onderneem om dit met die balju vir Kimberley uit te sorteer nadat
u met mnr Van Staden
in gesprek
was.
My
rekening ten opsigte van stoorkoste beloop R5814.00 tot en met vandag
en moet hierdie bedrag plus verdere kostes ten opsigte
van
administratiewe werk ten volle vereffen word alvorens ek 'n veiling
hierin sal hou.
U
het meegedeel dat u dit met horn sou uitsorteer waarna ek nog nooit
enige instruksies verder ontvang het nie.
..."
[18]
There was a lull from 05 December 2012 to 13 March 2013 between the
parties. On 14 March 2013, three months and ten days
later,
the appellant wrote to the sheriff
requesting him to return the Boer Bull trailer
to his client.
The sheriff responded a month and fifteen days later, on 29 April
2013, focusing on the aspect of storage costs,
and stated:
"Hierdie
sleepwa
sal
aan niemand oorhandig word alvorens
hierdie stoorkostes finaal vereffen word nie. Op 02 April
2013 het die eiser my
kantoor besoek. Ek het aan hom meegedeel dat
hierdie kostes eers betaalbaar is.
Tot op hede het ek geen
betalling ontvang nie en gee ek hiermee drie (3) dae tyd om hierdie
aangeleentheid te finaliseer en my rekening
te betaal. Tot en met
vandag is die stoorkoste R11 628.00
en
sal
dit
vanaf 03 May 2013 verhoog na R100.00 per dag tot en met verwydering."
(Emphasis added)
[19]
The appellant has by letter dated 03 June 2013 attempted to clarify
that the Kimberley sheriff, Mr Seema, never received the
Warrant
of Execution. Mr Seema and his secretary, Ms Bianca, are said to have
confirmed to the appellant that had their office
received the Warrant
it would have been registered on their system. The appellant provided
the sheriff with Mr Seema's cellular
phone numbers. Still appearing
in person before us, the appellant submitted that the sheriff was not
instructed to attach the trailer
from Pampierstad or to have
it delivered directly to him. He
also canvassed the issue
of financial prejudice to his client more so
in that the judgment debtor, Mr Motaung, had passed away in April
2013.
[20]
Notably, neither the said sheriff of
Kimberley, nor his secretary or even the deputy
sheriff,
Mr Kika, were called as witnesses at the trial by
either party to confirm
or deny
what
related to them. The sheriff maintained in a letter
dated 06 June 2013 that he sent the Warrant of Execution to the
Kimberley sheriff
whose deputy had intimated that they refused to
serve it because of an outstanding account that the appellant had
with them. In
the midst of this impasse the sheriff in pursuance to
his storage fees went ahead with the advertisement of the trailer
ostensibly
acting in terms of s 71A of the Magistrates Court
Act, 32 of 1944, to recover his storage costs. The advertisement was
carried
in the Noordwes Koerante
T/A
Stellalander but does not
form part of the papers, only the Tax invoice is indicative thereof.
However, the statement and proof
of payment to Noorwes Koerante
T/A
Stellalander by the sheriff were furnished.
[21]
It is evident from the record of proceedings that the appellant
informed the presiding Magistrate that he was unaware of pages
1 to
23 in the bundle of documents handed in as Exhibit A. He only became
aware thereof on 03 March 2015 when they were discovered,
a point
conceded by the sheriffs attorney, Mr De Bruyn. It follows that
the appellant was unaware of the process that had
allegedly been
followed by the sheriff in terms of s 71A.
[22]
Section 71A stipulates:
"71A
Movable property which messenger cannot dispose of in terms of this
Act, shall be sold by public auction.
-
(1)Any
movable property in the custody of the messenger or any other person
acting on his behalf
in respect of which attachment has
been withdrawn
or which is released from attachment and in
respect of which the owner or person from whose possession the
property has been removed,
cannot be traced,
and
which cannot be disposed of in terms of this Act, shall be sold by
the messenger by public auction, and the proceeds of the
sale shall,
after deduction of the messenger's costs, be paid into the
consolidated Revenue Fund:
Provided that such sale shall
not take place unless such property has remained unclaimed for a
period of fourteen days after the
messenger has published, in one
English and one Afrikaans newspaper circulating in the district where
the last known address of
the judgment debtor is situate, a notice
containing the name of the judgment debtor, a description of the
property and stating
the intention to sell such property if it is not
claimed within the period specified therein.
(2)
After
the public auction referred to in
subsection (1)
,
the messenger shall draw up a vendue
roll as if the sale was a sale in execution of property and shall
attach the roll to his return
in respect of the relevant process of
the court in the case together with proof that the proceeds of the
sale have been paid into
the Consolidated Revenue
Fund
.
(3)
The proceeds of
a
sale paid into the Consolidated
Revenue Fund in terms of this section, shall be refunded out of
accruing revenue to any person who
satisfies
a
judicial
officer of the district in which the sale took place that he would
have been entitled to receive the property referred
to in this
section after the attachment thereof had been withdrawn or the
property had been released from
attachment."
[23]
It is unquestionable that the trailer was never attached and the
appellant did not receive the return of non-service either.
This is
how the record reads at page 33:
"
Magistrate
:
Mnr Van Staden
,
voor ek na die volgende bladsy
toe oorgaan
,
is
daar toe ooit
'
n veiling
gehou van daardie sleepwa?
Mr
Van Staden:
Edelagbare nee
,
ek kon geen
veiling hou of reel omdat daar geen betekening van die lasbrief
was
nie
."
It
is incomprehensible how Mr Jankowitz could argue that because the
appellant erroneously spoke of "the attached trailer"
when
enquiring from the sheriff whether it has been sold, that it meant
that the trailer was indeed attached. Contextually the
appellant
meant to refer to the trailer in the possession of the sheriff. Mr
Jankowitz conceded that there was nothing in the papers
that served
as proof that the trailer was indeed attached.
[24]
What is puzzling is that the sheriff sold this trailer purportedly in
terms of s 71A for R4500.00 to a Mr JNL Van Staden whose
relationship
to the sheriff, also a Van Staden, has not been disclosed. The s 71A
notice in the Magistrates Court dated 17 July
2013 stated that
the
sheriff is in possession of an unclaimed trailer
which will be
sold on a public auction if no claim was received within 14 days from
the date of the advertisement. What I find peculiar
about this
assertion, that the trailer was unclaimed, is that the appellant had
already written to the sheriff and requested him
to return the
trailer to the judgment creditor (Mr Modisa) who himself had visited
the respondent on
02 April 2013.
Th is is what the sheriff
wrote:
"Op
02 April 2013 het die eiser my kantore besoek rakende hierdie
situasie.
Ek het aan hom verduidelik wat aangaan rondom die
stoorkostes en dat die sleepwa in my besit sal bly tot ek
my geld ontvang het.
Hoe op aarde kan u verwag dat ek maar
net die sleepwa sou teruggee aan die eiser?" (Own
emphasis)
[25]
It is clear to me that the issue was not that the trailer was
unclaimed. The sheriff knew that the judgment creditor (Mr Modisa)
needed to recover his debt from the proceeds of the sale of that
trailer. He was the successful party. This is what appears on
the
return of service of 23 May 2013:
"Mr
MF Modisa Execution Creditor And Mr Henry Pogisho Motaung Execution
Debtor
Return in accordance with the provisions of the
Magistrate's Court Act 32 of 1944,
as
amended
The
storage fees are calculated from 18.06
.
2012 till
02
.
05
.
2013 for R30
.
00
p/day. From the 3
rd
of
May [2013] it
is
calculated at
R100
.
00 p/day.
The trailer will remain in my
possession till full and final payment is received.
All extra administration costs
will be debited against your
account.
With
reference to several correspondence herein and my letter dated
29.04.2013.
PS
:
The original return together with the original abovementioned
process
is
dispatched to the man.
"
A
sum total of R13 366.95 was claimed, the storage fees whereof
amounted to R9540.00.
[26]
On 19 June 2014 the sheriff issued a "complementary
return":
"Herewith
the outstanding
costs
regarding the storage and
further
administration costs with reference to my return dated 23 May
2013.
PS:
The original return together with the original abovementioned process
is dispatched to the man."
Here
a revised amount of R24 173.34 was reflected for storage and
administration.
[27]
The compound storage costs consequently escalated to an astronomical
figure of R37 897.89. This figure is even higher than
the judgment
debt of R30 851.00 which was claimed by Mr MF Modisa, the Execution
Creditor. The sheriff stated that
there are
no guidelines regulating how much he could charge for storage. So he
asked around and was advised that he was undercharging.
He increased
his fees for what is colloquially referred
to as an "overnight"
charge with no adequate
warning. The storage costs were calculated as follows: 18 June 2012
to 02 May 2013 at R30.00 per
day amounted to R9540.00 and for
the period 03 May 2013 to 06 December 2013 at R100.00
per day amounted
to R21 700.00. The total
figure for storage alone amounted to R31 240.00.
The difference from the total
amount of R37 897.89 comprises
the alleged sheriff's expenses for newspaper advertisements,
bank charges, correspondence,
selling expenses and telephone costs.
[28]
I find fault with the sheriff for receiving the trailer directly from
the judgment creditor (Mr Modisa) when he was instructed
that he had
to attach it at [...] S. S.. Had the sheriff notified Mr MF Modisa
that there were storage fees involved,
Modisa's decision
whether to leave the trailer with the sheriff or take it to his
residence to secure an attachment would
have been significant.
[29]
Despite the fact that the sheriff knew that the appellant was the
judgment creditor's attorney, who had already written to
him and
asked for the trailer to be returned to the judgment creditor on 17
July 2013 the sheriff nevertheless wrote:
"In
terms of the Magistrate Court
-
Section 71A I, sheriff for
Hartswater, give hereby notice that I am currently
in
possession of an unclaimed trailer.
This trailer will be
[sold] on
a
public auction if no claim is received within 14
days from date of this advertisement."
[30]
On 31 October 2013 the sheriff issued a Notice of Public Sale
wherein he intimated that in terms of the provisions
of
Article 71A of the Magistrate's Court
Act an unclaimed trailer would be sold
to the highest
bidder on 06 December 2013 at the sheriff's offices at 10h00 .
It turns out, as already stated, that the trailer
was only sold for
R4500.00 to a Mr JNL Van Staden. The sheriff
claimed to have kept the trailer as a lien
to recover his outstanding
storage fees. A lien is defined in The Law
of South Africa
(LAWSA) 2nd Ed Vol 15 Part 2 Para 49 as:
"(T)he
right to retain physical control of another's property, whether
movable or immovable, as
a
means of securing payment of
a
claim relating to the expenditure of money or something of
monetary value by the possessor (termed 'retentor' or
'lien
holder', while exercising his or her lien) on that
property, until the claim has been satisfied."
[31]
In
Oceana Leasing Services (Pty)
Ltd v BG Motors (Pty) Ltd
1980
(3) SA 267
(WLD) at 273C Melamet J remarked:
"A
pledge of property
,
without the consent of the
owner, is not binding on the owner thereof: Wille The Law of Mortgage
and Pledge in South Africa
2
nd
ed
at 27
;
Roos v Ross
& Co
1917 CPD 303
at 306
-
307
."
Van
Zyl J in
Trust Bank van Afrika BPK v Van der Walt N.O
1972 (3) SA 166
(KPA) at 170F - H enunciated the following as
translated in the unreported judgment by Ndlovu J in
Absa Bank
Limited v Robin's Mobile
&
Fleet Maintenance
CC
Case No 11956/2011 delivered on 05 April 2011:
"There
is no agreement to pay storage. Storage can, therefore,
not
be claimed ex contractu. If it is claimable it must be on the ground
of enrichment. The applicant is not enriched by the storage
of the
lorry. Respondent had
a
claim against the applicant for the
repair of the lorry and he held the lorry as security for the payment
of those repairs.
After completion of the repairs the respondent
could immediately have claimed the amount due from applicant and if
applicant failed
to pay, the respondent could have sued
him for the amount due. The debtor is not enriched by
costs
incurred by the creditor
as a
result of his omission to
claim, just
as
interest on an outstanding amount of money
cannot be claimed. Storage cannot be claimed in these circumstances.
If respondent foresaw
storage
as a
result of late payment he
should have stipulated for that."
[32]
Sonnekus and Neels Sakereg Vonnisbundel at 768 classify a lien as a
form of self- help that has been sanctioned by law with
the effect
that it encroaches on the entitlement of owners.
Thus this form of "self-help" should
only be allowed
in certain well-defined instances. Van Reenen J also pointed out in
Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider
Health
&
Fitness Centre
1997 (1) SA
646
(CPD) at 652C - D:
"On
my understanding of the authorities the essential content of
a
ius retentionis in South African law
is
the right on the
part of
a
retentor to retain physical control of another's
property
as a
means of securing payment by the owner thereof-
to the extent that he
has
been enriched
-
of money or
labour expended thereon by the retentor.
Brooklyn House
Furnishers (Pty) Ltd v Knoetze and
Sons
1970 (3) SA 264
(A) at
270E."
[33]
It is common cause that the sheriff, Mr Van Staden, though placed in
possession of the Warrant of Execution, did not attach
the
trailer. Procedurally, it is a requirement that the sheriff ought to
demand payment of the judgment debt from the
Execution
Debtor before attaching the property. Since the Execution Debtor was
in a different area of jurisdiction, Kimberley,
the legal process had
to be carried out by the Kimberley sheriff, which did not happen.
[34]
The following can be abstracted from the
Magistrate's judgment:
34.1
The Magistrate found that the sheriff had attached the trailer
and was entitled to claim the
costs from the appellant as
the instructing attorney. This finding is incorrect. It was conceded
by the sheriff during
the trial that he could not attach the trailer
as it was beyond his jurisdiction. It was therefore a misdirection by
the Magistrate
to nevertheless still have found that the sheriff had
attached the trailer.
34.2
The Magistrate focused on the question:
"
what
was
the mandate given to the sheriff and who gave him that mandate?
"
and
"
whether the plaintiff acted within the
borders of his mandate or for that matter outside his instructions.
"
According to the Magistrate he looked at the Warrant of Execution
which reads:
"To
the Messenger of the Court:
Whereas
in this action the said Execution Creditor [Mr M F Modisa] on the 09
March 2011 obtained judgment in the abovementioned
court against the
said Execution Debtor [the late Mr Henry Pogisho Motaung] of [...] S.
S., Hartswater, for the several sums set
out in the
margin
hereof amounting in all to the sum of R30 851.00 (excluding interest
still to be added to the Capital Amount) of which RNil
has since been
paid. This is therefore to authorize and require you to raise on the
property of the said Execution Debtor
the sum of R30
851.00
+
interest
+
messenger's Fee together
with your costs of this execution and pay the said Execution
Creditor's Attorney
the aforesaid sum of R30
851,00
+
interest and return to this court what
you have done by virtue hereof
"
The
sheriff has clearly not carried out the mandate as reflected on the
Warrant of Execution.
34.3
It is further unclear how the Magistrate could then have found
that the sheriff was justified
in using the Warrant of
Execution as authorising him to recover the storage costs because the
Warrant of Execution was meant
to compensate the Execution Creditor
who in this instance was left in the cold.
34.4
It remains inexplicable how the sheriff could have resorted to
self-help by selling the trailer following the s
71A route when the
judgment creditor was known to him. In my view it was unprocedural
and unjustified for the sheriff to have done
so.
34.5
Even if my conclusions were to be wrong I nevertheless find that the
escalation from a modest but reasonable storage
charge of R30.00 per
day to an astronomical R100.00 per day was arbitrary, unilateral,
irregular and unjustified.
[35]
In any event the law exonerates the appellant from liability in the
circumstances of this case. In THE LAW OF SOUTH AFRICA
(LAWSA) Second
Edition Volume 14 Part 2 page 267 para 306 the following is stated:
"An
attorney is not responsible for any wrongful act committed by him or
her qua attorney within the scope of his or her authority:
qui tacit
alium tacit per se."
See
Smit v Meyerton Outfitters
1971 (1) SA 137
(T).
[36]
Even if the claim of the plaintiff/respondent (the sheriff) claim
succeeded he would only have been entitled to storage costs
at the
rate of R30.00 per day for a period not exceeding four (4) months.
Rule 41 aforementioned is a good indicator that a period
of 4 months
would have been reasonable. This would have meant that the sheriff
would have been entitled to R30.00 X 319 days as
calculated from 18
June 2012 to 02 May 2013: an amount of R9570.00.
[37]
In as far as the costs are concerned fairness and equity dictates
that each party should bear his own
costs
notwithstanding the
appellant's success. I am
mindful that the appellant throughout the proceedings handled his own
case. This is not prohibited. He
is an admitted attorney and lost
income when he prosecuted his case. However, he and his client (Mr
Modisa) contributed in large
measure to the confusion and delay in
this matter. In the result, the following order is made:
Order
1.
The appeal is
upheld
.
2.
The Magistrate's judgment and order are set
aside.
3.
Each party is ordered to pay his own costs including the costs
of the
appeal.
________________________
M
C MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
I
concur
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
WILLIAMS
J
38.
I have read the judgment of Mamosebo J in this matter. I agree with
the proposed order but for different reasons. The facts
of this
appeal are set forth in the judgment of Mamosebo J and I therefore
deal with it only as far as is necessary to give completeness
to my
reasoning.
39.
After the initial difficulties experienced by the sheriff in
attaching the trailer at the residence of the judgment creditor,
Mr
Modise, he returned the warrant of execution to the appellant, Mr
Bojosinyane. The date on which the warrant was returned is
not
apparent from the evidence or the correspondence between the parties.
From the evidence of the sheriff however (and the particulars
of
claim I may add) it is clear that on the date that Modise delivered
the trailer at the sheriff's place of business (18 June
2012) the
sheriff was not in possession of the warrant of execution anymore.
40.
What is important about this fact is that he did not at the relevant
time have an instruction from the appellant to attach the
trailer.
That instruction was only given again on 12 July 2012 when the
appellant forwarded 2 copies of the warrant of execution
to the
sheriff together with the address of the judgment debtor for service
thereof. The sheriff confirms in his evidence-in-chief
that his
instructions received on 12 July 2012 were to attend to the service
of the warrant of execution on
the judgment debtor and the attachment
of the
trailer.
41.
In the amended particulars of claim the sheriff's cause of action is
set out as follows:
"3.
Op of ongeveer Junie 2012 het die Eiser die
verweerder in kennis gestel dat die Verweerder
se klient
'n sekere sleepwa aan die Eiser oorhandig het. Die Verweerder het
derhalwe die Eiser opdrag verskaf vir die gepaardgaande
beslag/egging
op die sleepwa en ook om toe te sien tot die verkoping van die
sleepwa.
4.
Hierby aangeheg rekeningstaat soos opgestel deur die Eiser aan die
Verweerder wat aantoon die onderskeie fooie, uitgawes en koste
waarop
die baljuldie eiser geregtig is om te verhaal in terme van die
Landdroshof wetgewing."
"Die
Eiser het die sleepwa wat gestoor is by die Eiser in terme van
Artikel 71A van die Landroshowe Wet verkoop op 'n publieke
veiling
waarvan die opbrengs die bedrag van R4500. 00 beloop het
42.
The bulk of the charges in the statement of account relate to the
storage costs of the trailer - some R31 240, 00 of a total
account
which inclusive of VAT amounted to R37 540, 29. After deduction of
the selling price of the trailer the sheriff's claim
against the
appellant totalled R33 040, 29.
43.
From what transpired after the warrant of execution was received by
the sheriff on 12 July 2012, and which is dealt with in
the judgment
of Mamosebo J, it is obvious that judicial attachment of the trailer
never took place. The court a
qua
was wrong in finding
that it had. It follows also that the sheriff's reliance on s71 A of
the Magistrates Court Act for the sale
of the trailer is misplaced.
This is not a case where attachment had been withdrawn or where the
trailer had been released
from attachment and the owner or person it
had been removed from cannot be traced, as envisaged in the section.
There is therefore
no basis upon which the appellant can be held
liable for the charges relating to notices, advertisements and other
expenditure
in connection with the sale of the trailer.
44.
I return to the issue of the storage costs. It is common cause that
the appellant did not personally instruct the sheriff to
store the
trailer. The evidence of the sheriff in this regard is:
"...
ek verstaan dat Mnr Bojosinyane se dat hy nie die opdrag gegee
het vir die verwydering nie, maar ek wil ook aan die Hof
weereens
verduidelik dat sy kliient het die wa na my toe gebring en
uit hoofde van vorige kere wat die lasbrief by my was, het ek geweet
dat dit vir hulle belangrik is dat daar op die wa beslaggele moes
word. En toe hulle die wa na my toe bring was dit my eerste
optrede om vir mnr Bojosinyane in kennis te stel dat die item wet in
my besit is."
45.
Having established that (i) there had been no express agreement
between the appellant and the sheriff that the trailer be stored
at
the premises of the sheriff and that (ii) the storage of the trailer
did not take place pursuant to the execution process as
prescribed in
Rule 41, the question is on what basis the appellant could be held
liable for the storage costs.
46.
In this respect Mr Jankowitz who appeared for the sheriff argued that
at the very least it was an implied term of the agreement
between
the parties that the appellant would
be liable for the storage costs.
I cannot agree
with this contention. An implied term usually arises by
operation of law. In
Bertelsmann v Per
1996(2) SA 375 TPD at
382-383, where the issue was whether the liability of an attorney for
counsel's fees was implied as a matter
of law, it was held that it
would depend on the existence of a professional practice or trade
usage which would have to be established
by evidence.
In casu
no
evidence was led to the existence of such professional practice or
trade usage between an attorney and the sheriff and in addition
no
such implied term was pleaded. In any event such implied term would
be contrary to the general principle as enunciated in
Diplock v
Webb
1910 CPD
198
at 202 as follows:
"
Now
,
under ordinary
circumstances
,
unless some
special liability is incurred by the attorney in his transactions
with the Messenger
,
the attorney renders himself in no
respect liable for the costs which his client is condemned to pay.
That is laid down in the case
of Maybery v Mansfield (9c.B.754)
,
and the principle of that judgment may be accepted by this
Court. It amounts to this
:
t
hat, under
ordinary circumstances
a
messenger acts as an
officer of
the
Court, and not
as
a
servant of the attorney who issues the
writ; that
as
an
officer of the
Court he is entitled to
certain
costs,
and those are costs
which
must
be paid by the client for
whom
the
attorney acted. That is the
general
principle
,
and I can find nothing in this
particular case which
would
take the case from under
that principle
.
The attorney entered into no
contractual
relation with the Messenger
,
and he did no more that
is
usually done by
parties to
a
suit i.e., to assist the Messenger in discovering
the
whereabouts
of property belonging to
a
judgment
debtor.
"
(own
emphasis)
47.
Had Mr Jankowits meant to argue that it was a tacit term of the
agreement that the appellant be liable for
the
storage costs, the first obstacle once again is that such a
term has not been pleaded. Furthermore in
Alfred McAlpine
&
Son (Pty) Ltd v Transvaal Provincial Administration
1974(3) SA
506(A) at 532 H, it is stated that:
"The
Court does not readily import
a
tacit term. In cannot make
contracts for people; nor can it supplement the agreement of the
parties merely because it might be reasonable
to do so. Before it can
imply
a
tacit term the Court must be satisfied, upon
a
consideration m
a
reasonable and businesslike manner of the
terms of the contract and the admissible evidence of surrounding
circumstances, that an
implication necessarily
arises
that the
parties intended to contract on the basis of the suggested term."
48.
In light of the fact that there was no instruction from the appellant
that the sheriff store the trailer and no subsequent attachment,
there are no grounds upon which to import a tacit term conferring
liability for storage costs on the appellant.
_____________________
CC
WILLIAMS
JUDGE
NORTHERN
CAPE DIVISION
I
concur
_____________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For
the appellant:
Mr BG Bojosinyane (in person)
For
respodent:
Adv DC Jankowitz
Instructed
by:
Haarhoffs Attorneys