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[2015] ZAECMHC 86
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Khobane v Levy and Others (A3049/2015) [2015] ZAECMHC 86 (16 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A3049/2015
In
the matter between:
MOZAMANE
SOLOMAN
KHOBANE
APPELLANT
and
ALAN
PAUL
LEVY
1
ST
RESPONDENT
ALTECH
NETSTAR (PTY)
LTD
2
ND
RESPONDENT
WILLEM
JOHANNES VAN WYNGAARDT
3
RD
RESPONDENT
JUDGMENT
CHAITRAM
AJ:
INTRODUCTION
[1]
The issue for determination in this appeal is whether good cause has
been shown for setting aside a warrant of execution against
property
(writ) arising from the following facts and circumstances.
[2]
The action was not defended, a default judgment was entered, the writ
was issued and executed, a subsequent sale in execution
liquidated
the judgment debt, the judgment has not been rescinded, the judgment
debtor applied to set-aside the writ almost three
years after it was
issued, the judgment appears to be void ab origine, and the sole
purpose for setting aside the writ is that
the judgment debtor wishes
to perfect a cause of action for damages against those whom he
perceives to have wronged him in relation
to the execution
proceedings.
THE
PARTIES
[3]
The appellant was the defendant/judgment debtor in the action.
[4]
The first respondent is the second respondent’s erstwhile
attorney, who had represented it in the action. A costs
order
was sought against the first respondent in the court a quo.
[5]
The second respondent was the plaintiff/judgment creditor in the
action.
[6]
The third respondent had purchased the appellant’s motor
vehicle at the sale in execution and had been cited in the court
a
quo merely as an interested party. No order was sought against
the third respondent.
[7]
For purposes of simplicity, I will refer to the main parties as
plaintiff and defendant.
THE
FACTS
[8]
The key facts, broadly expressed, are the following.
[9]
On 13 May 2011 the plaintiff instituted action in terms of a simple
summons against the defendant in the Johannesburg Magistrates
Court
for “
payment
of the amount of R16 469-58 in respect of services rendered during
the period 2009 to 2011
”.
[10]
The summons was served on the defendant on 11 July 2011.
[11]
Upon receipt of the summons, the defendant did not defend the action
but telephoned the plaintiff’s attorney’s
offices and,
according to the defendant, concluded the following agreement with an
attorney there, a Mr Sacks (Sacks):
[11.1]
Sacks would obtain instructions from the plaintiff, firstly,
regarding the quantum of the claim,
which the defendant disputed, and
secondly, about the action having been instituted prematurely as the
defendant was still debating
the account with the plaintiff;
[11.2]
The defendant would commence a monthly payment of one thousand Rand
(R1000-00) to the plaintiff’s
attorney in liquidation of the
claim, pending a debatement of the capital;
[11.3]
Sacks would furnish the defendant with the firm’s banking
details for the interim payments;
[11.4]
Sacks would suspend further legal action;
[11.5]
Sacks would forward the defendant a written recording of these terms
of their agreement.
[12]
It is common cause that Sacks did not forward any confirmation of
this alleged agreement to the defendant.
[13]
On 08 August 2011 the plaintiff’s attorneys requested the entry
of a judgment against the defendant in default of his
appearance to
defend.
[14]
The default judgment was entered against the defendant on 11 August
2011 and a writ was simultaneously issued by the clerk
of the court.
[15]
The writ was executed by the sheriff at the defendant’s home on
29 August 2011 when various of his movable property was
attached,
including his car which was allegedly worth approximately one hundred
and ninety six thousand Rand (R196 000-00).
[16]
According to the defendant, he was provided with the plaintiff’s
attorneys banking details on 27 September 2011, and
he commenced
paying his monthly instalments, as he had previously undertaken to
do, at the end of September 2011.
[17]
The sheriff, however, removed the attached property from the
defendant’s home on 18 October 2011 despite the defendant’s
vehement protests.
[18]
The sheriff sold some of the attached property in execution on 19
October 2011 after the defendant and his then attorney, despite
paying the plaintiff’s attorney the sum of eight thousand Rand
(R8000-00), failed to persuade the plaintiff’s attorney
to stay
the sale.
[19]
The sale raised enough money to liquidate the plaintiff’s
claim.
[20]
For all intents and purposes, the action was concluded as no further
steps in execution were taken against the defendant.
[21]
The defendant subsequently raised a complaint against the sheriff of
the court, with the South African Board of Sheriffs during
or about
February 2012.
[22]
The defendant launched an application for the rescission of the
judgment on 15 October 2012.
[23]
The defendant’s attorney enrolled the rescission application
for hearing on 10 December 2012, when it was removed from
the roll
for reasons that are not clear. To date, the rescission
application has not been re-enrolled for hearing.
[24]
Nothing further of significance seems to have occurred thereafter,
until about June 2014 when the defendant launched his application
in
the Johannesburg magistrate’s court to set aside the writ.
[25]
The defendant’s grounds for setting aside the writ may be
summarised as follows:
[25.1]
The writ was not competent as the judgment in the action was void ab
origine for the following reasons:
i)
the
plaintiff had fraudulently sued out of the incorrect jurisdiction;
ii
)
the plaintiff had
misled the court by pleading its cause of action incorrectly, and not
relying on the written agreement that regulated
the relationship
between the parties;
iii)
the
plaintiff’s attorney had breached their oral agreement in terms
of which it had been agreed that the action would be stayed;
and
iv)
the
Johannesburg magistrate’s court lacked the necessary
geographical jurisdiction to have heard the action;
[25.2]
The defendant had made a valid tender of payment of the claim prior
to judgment when he had concluded
his agreement with Sacks.
[25.3]
In any event, the warrant had been fully satisfied, and this
constituted a sufficient reason, by
itself, to have the writ set
aside.
[26]
The defendant suggested that these circumstances gave rise to a cause
of action for damages in his favour against the various
role-players
who had participated in the execution proceedings against him.
He, accordingly, contends that he requires an
order setting aside the
writ in order to perfect his cause of action for damages.
[27]
The plaintiff’s position in the matter is the following:
[27.1]
The judgment has not been rescinded, the writ has been satisfied, the
plaintiff does not intend to
execute further, and the matter is at an
end;
[27.2]
No firm agreement was concluded between Sacks and the defendant over
the telephone on the terms alleged
by the defendant;
[27.3]
The tender of payment that the defendant refers to was, in any event,
a conditional tender which
did not bind the plaintiff;
[27.4]
The defendant’s almost three-year delay in launching the
application to set aside the writ
is unreasonable, unjustified, and
amounts to acquiescence to the consequences of the judgment; and
[27.5]
The defendant’s main reason for seeking the order setting aside
the writ relates to an attempt
to obtain some sort of tactical
advantage in his proposed action for damages, and does not amount to
good cause.
The
Law
[28]
The defendant’s application in the magistrate’s court to
set aside the writ was based on the provisions of section
62(3) of
the Magistrate’s Court act 32 of 1944 (the MCA), which reads as
follows:
‘
Any court
may, on good cause shown, stay or set aside any warrant of execution
or arrest issued by itself….’
[29]
Some of the popular grounds for setting aside a writ are set out in
Le
Roux v Yskor Landgoed (Edms) Bpk
1984 (4) SA 252
(T) at 257 B-H. It is not necessary to list
them here. Those grounds, however, are, by no means, a closed
list of instances
when a writ may be set aside.
[30]
The guiding principle remains an assessment of whether the facts
relied-upon for the setting aside of the writ amount to good
cause.
[31]
Our courts have, for obvious reasons, avoided having to define the
concept of ‘good cause’. In
South
African Forestry Co v York Timbers Ltd
2003
(1) SA 331
SCA at paragraph [14], the court said the following,
albeit in a different context, about the concept of ‘good
cause’:
‘“
Good
cause” is a phrase of wide import that requires a court to
consider each case on its merits in order to achieve a just
and
equitable result in the particular circumstances. As pointed
out by Innes CJ in Cohen Brothers v Samuels
1906
TS 221
at
224 in relation to the meaning of that phrase…:
“
No
general rule which the wit of man could devise would be likely to
cover all the varying circumstances which may arise in applications
of this nature. We can only deal with each application on its
merits, and decide in each case whether good cause has been
shown.”
’
[32]
In
HDS
Construction (Pty) Ltd v Wait
1979 (2) SA 298
E at 300H - 301A, the court stated:
‘
When
dealing with words such as “good cause” and “sufficient
cause” in other Rules and enactments the Appellate
Division has
refrained from attempting an exhaustive definition of their meaning
in order not to abridge or fetter in any way the
wide discretion
implied by these words….The court’s discretion must be
exercised after a proper consideration of all
the relevant
circumstances.
’
[33]
In yet another context, but of equal application here, the court in
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
AD, at
352H, stated the following:
‘
The
meaning of “good cause”… should not lightly be
made the subject of further definition. For to do so
may
inconveniently interfere with the application of the provision to
cases not at present in contemplation. There are many
decisions
in which the same or similar expressions have been applied in the
granting or refusal of different kinds of procedural
relief
.’
[34]
Importantly, in the context of applications for the rescission of
judgments, an applicant is required to prove the existence
of good
cause, and not merely allege it. (See
Silber
,
above, at 352G). I see no reason why the same standard should
not be applied in the context of applications to set aside
a writ.
Indeed, the phrase in section 62(3) of the MCA, reads “on good
cause
shown
”
(my emphasis). The phrase must, accordingly, be interpreted as
“on good cause proven”. I am fortified
in my view
by the fact that an application to set aside a writ is final in
nature, not interlocutory. An applicant has no
second chance to
expand-upon, or to prove any unsubstantiated allegations at any
subsequent hearing. In motion proceedings,
it is the supporting
affidavits of the parties that constitute the evidence before the
court. An applicant must, therefore,
ensure that he addresses
his facts and evidence with a sufficient degree of particularity so
as to enable a court to assess whether,
overall, the applicant has
discharged the onus of proof of good cause on a balance of
probabilities.
[35]
The court’s assessment of “good cause” will be
subject to the court’s discretion, and, inevitably,
a semblance
of a value judgment may also creep into the assessment due to a
judicial officer’s idiosyncratic thought processes
–
probably what the Deputy Chief Justice was recently reported as
having referred-to as ‘the inarticulate premise’
which he
described as ‘that part of a judge’s consciousness that
comes with who he or she is’ and which ‘intrudes
into
decision-making’.
[1]
However, the court’s conclusion as to whether or not good cause
has ultimately been established ought to be able to be reasonably
objectively justifiable.
ASSESSMENT
OF THE FACTS FOR GOOD CAUSE
[36]
Turning to the assessment then:
The
Judgment being obtained Fraudulently:
[37]
The defendant has relied upon a host of reasons to attack the
judgment, some of which seem to have been thrown-in merely for
good
measure. For instance, there were no facts alleged in
substantiation of the grounds that the judgment was obtained by
fraud, or a common mistake between the parties, or that the plaintiff
had fraudulently sued out of an incorrect court. These
grounds
are, accordingly, summarily rejected.
The
Cause of Action having been Pleaded Incorrectly:
[38]
The plaintiff has offered nothing of substance to refute the
defendant’s claim that the cause of action was incorrectly
pleaded. This is despite the fact that the plaintiff has sued
for ‘
services
rendered between 2009 and 2011
’,
and the written agreement that the defendant contends constitutes the
basis of the cause of action was concluded in 2010.
Whereas, at
face value, an element of uncertainty arises whether the plaintiff’s
claim in the summons refers to a different
period, or for different
services, the parties seem to have been ad idem about the actual
services that the summons referred to.
The defendant never took
this point with Sacks because he knew what the plaintiff’s
claim was about. The summons, therefore,
fulfilled the purpose
of a simple summons. It was just the quantum of the claim that the
defendant had disputed. Even if
the plaintiff’s claim was
for the services that were referred-to in the defendant’s
written document, and the plaintiff
had omitted to refer to the
document in its particulars of claim, the summons may very well have
been excipiable, but I do not
think that the judgment that was
pronounced over such a cause of action would, necessarily, be void ab
origine for that reason
alone.
[39]
In the court’s view, therefore, although this point seems to
favour the defendant, it is hardly compelling enough in
the
circumstances of the matter.
The
Agreement Concluded with Sacks:
[40]
The defendant has related his version of the terms and conditions of
the arrangement with Sacks in an unduly sketchy manner.
The
defendant did not specify what part of the plaintiff’s claim he
disputed or how much he suggested was appropriate to
be due to the
plaintiff. It is not clear what aspect of the quantum Sacks was
to have obtained instructions on. The
defendant does not
specify why he suggests that the action was premature, and precisely
what Sacks was to obtain instructions on
in this regard. The
defendant does not specify when the plaintiff’s firm’s
banking details were to have been
supplied
to him or when he was to have commenced his monthly interim
payments. It is also not clear how, when, and with whom
the
debatement was to take place. The defendant does not specify
the terms and conditions under which the continuation of
the action
was to remain suspended. The date when Sacks was to have sent
the defendant the written recording of the arrangement
is not clear.
He also does not state why he failed to contact Sacks when he failed
to receive Sacks’ written recording.
[41]
All of this uncertainty invokes scepticism whether any firm agreement
was concluded that could be relied-upon by the defendant.
[42]
The plaintiff, on the other hand, fails to set-out its version of the
telephone communication with the defendant. In his affidavit,
Sacks
merely states that ‘
at no stage was a final arrangement
entered into in terms of which the plaintiff would accept payment of
this debt in instalments
’. What the plaintiff does
do, however, is attach a letter written by the defendant, apparently
in response to the attachment
of his movable property by the sheriff
on 29 August 2011, addressed to plaintiff’s attorneys, the
material parts of which
read as follows:
‘
I vow to
pay the debt on a monthly basis starting from the 15/9/2011. I
will continue to pay on the 15
th
of every month. I will pay R1000-00 every month for next six
months, and review my salary thereafter. Hope my request
will
be taken into consideration.
’
[43]
The contents of the defendant’s letter, which are undisputed,
are certainly not consistent with the terms of the arrangement
that
he alleges. If anything, his letter suggests the approach of a
recalcitrant debtor who reacts only when faced with the
threat of
dire consequences.
[44]
Furthermore, in the defendant’s application for the rescission
of the judgment, which he annexed to his application to
set aside the
writ, he recounts the telephone call with Sacks in paragraph 23 of
his founding affidavit merely as follows:
‘
I called
the office of Alan Levy, the attorneys of the respondent, a day or so
after the summons was served. My spouse…also
called
there. We told the persons we spoke to, whose names we cannot
recall, that were
(sic)
still
debating the matter with respondent. However, we said that we
would start paying in the meantime and wanted their banking
details.
The office
(sic)
of
the attorneys said that they would look into the matter.
’
[45]
This version is also in stark contrast to the detailed version of the
call that he sets up, almost two years later, in his
founding
affidavit of his application to set aside the writ.
[46]
It is not reasonably possible, in the circumstances, to infer the
existence of any meaningful agreement that was concluded
between the
defendant and Sacks in terms of which the plaintiff’s attorney
was disentitled to proceed with the action.
The
Court’s Lack of Geographical Jurisdiction:
[47]
It is common cause that the ground of jurisdiction that the plaintiff
had relied upon in the action was that ‘
the
whole cause of action had arisen within the court’s
jurisdiction’
.
It is common cause that neither the plaintiff nor the defendant is
subject to the jurisdiction of the Johannesburg magistrate’s
court for any other reason. The defendant’s jurisdictional
challenge, accordingly, relates to where the whole cause of action
had, in fact, arisen.
[48]
In order for a cause of action to have arisen wholly within a court’s
jurisdiction, all of the material elements (
facta
probanda
,
as opposed to
facta
probantia
)
of the cause of action must have taken place within that court’s
jurisdiction.
[49]
According to the defendant, the written agreement that he contends
formed the basis of the cause of action, was concluded in
Polokwane,
and performance in terms of the agreement had taken place in
Polokwane. The plaintiff did not respond meaningfully
to these
allegations. Polokwane is, clearly, not within the geographical
jurisdiction of the Johannesburg magistrate’s
court. On
these facts alone, two of the material elements of the cause of
action had occurred outside of the court’s
jurisdiction.
On the defendant’s version, and in the absence of a version by
the plaintiff, all indications are that
the Johannesburg magistrate’s
court did not have the necessary geographical jurisdiction to have
entertained the action.
[50]
In addition to merely blandly disputing that the court lacked
jurisdiction, the plaintiff contends that the question of the
voidness of the judgment relates peculiarly to an application for a
rescission of a judgment, and not an application for the setting
aside of a writ. The learned magistrate seemed to hold this
view as well. I, however, cannot agree. There is
no
reason, in principle, why, generally speaking, a judgment that has
been conceded as having been fatally defective, or one that
a court
is prepared to find was incorrectly entered, cannot constitute, at
least, a factor in the assessment of good cause for
the setting aside
of a writ, if not constituting good cause by itself. In
Ras
En Andere v Sand River Citrus Estates (Pty) Ltd
1972 (4) SA 504
TPD, it was held that a writ may be set aside if the
causa
(reason or motive) for the judgment has fallen away. The very
fact that a judgment is a nullity may be construed as one that
is
devoid of a
causa
for its existence.
[51]
There are a number of authorities that establish that a judgment
given by a court that has no jurisdiction to do so is a nullity
and
may be ignored without the need to have it set aside. See
Vidavsky
v Body Corporate of Sunhill Villas
2005 (5) SA 200
SCA at 207 C, together with the various other
authorities cited by the learned author D E Van Loggerenberg in
Jones
& Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa
,
10
th
ed, vol 1: The Act, p 82.
[52]
I would hasten to add, however, that it would be an inherently
dangerous practice to ignore court orders on the basis of one’s
unilateral, misguided assessment that the judgment is a nullity.
Parties who are, both, favourably and unfavourably, affected
by a
court order may ignore it without the need to first approach a
competent court to set it aside if they are in agreement that
it
amounts to a nullity. The authorities above, however, are
silent as to what the parties may do when they, in good faith,
have
opposing views as to the status of a court order.
[53]
Van Loggerenberg, above, at p 82, states that ‘
in
the event of the parties disagreeing as to the status of an impugned
judgment, the court should be approached for a rescission
of the …
[order
on the basis of it having been void ab origine]’. I agree
with the learned author. This will be especially
necessary as
there is a presumption in law that a judgment, even one that is a
nullity, is a good judgment for the purposes of
execution until such
time as it has been set aside. In
Bezuidenhout
v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
ECD, the court said that ‘
an
order of a court of law stands until set aside by a court of
competent jurisdiction. Until that is done the court order
must
be obeyed even if it may be wrong’
.
[54]
A court’s lack of jurisdiction is, however, one of three
exceptions to this in terms of our law’s Roman-Dutch heritage,
the other two traditional exceptions being the failure to serve the
summons, and the want of power to sue. In
MEC
for Economic Affairs, Environment and Tourism v Kruisenga
2008 (6) SA 264
CkHC, the court, in a scholarly judgment, questioned
whether these exceptions still find application in our law today in
the light
of the out-dated procedure, namely a “
complaint
of nullity
”
that a party had to resort to in order to challenge such a judgment.
Even though the setting aside of a void judgment
in the Magistrate’s
court, as opposed to the High Court, is now regulated by statute, the
exceptions remain a part of our
law. The court, above, opined
that ‘[a]
more
acceptable approach…is that…the validity of a final
judgment is rather to be determined by one of the recognised
remedies
[appeal
or review]
for
the setting aside of such a judgment
’,
as opposed to merely ignoring the judgment.
[55]
I agree with that court’s general sentiments. It is
perhaps time to relieve the tension between the presumed validity
of
all court judgments and the traditional exceptions thereto by
jettisoning from our law the anachronistic application of the
exceptions in terms of which judgments may be ignored, in favour of
the more orderly procedure of appeal and review.
[56]
The plaintiff’s submission on the issue, if I understood it
correctly, was that the judgment is not void ab origine,
but that
even if it is, a court will not necessarily come to the defendant’s
aid on that basis alone. I agree with
the latter part of the
plaintiff’s submission. In the context of an application
for rescission of a judgment, for instance,
a judgment debtor who
relies on the ground that the judgment is void ab origine is also
required to set out a valid defence to
the claim. See
Leo
Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts &
Lloyds
2007
(2) SA 1
SCA. The point is that the execution of a writ on a
judgment that is void ab origine will be competent if the court
declines
to assist one in the defendant’s position.
[57]
In the circumstances, the voidness of the judgment in the present
matter is but one factor to be considered in the overall
assessment
of good cause. At this stage, at least, the point favours the
defendant.
The
Defendant’s Tender of Payment in Satisfaction of the Judgment
Debt:
[58]
The defendant’s contention that he made a proper tender of
payment when he concluded his arrangement with Sacks flounders,
firstly, on the basis of my findings already that no proper agreement
with Sacks is discernable from the defendant’s version
of
events, and, secondly, even if one were to consider the limited terms
of the offer that the defendant refers to, the offer is
found
wanting.
[59]
The defendant concedes that his tender was conditional. A
plaintiff is not obliged to accept a tender on conditions that
are
not reasonably suitable to it. A tender of payment of a
judgment debt must be objectively reasonable in order to amount
to a
proper tender. The facts and circumstances of the tender,
together with its terms are vitally important in assessing
whether a
plaintiff is perhaps attempting to overreach the defendant, or acting
maliciously, and, accordingly, whether the tender
is one that the
plaintiff ought to accept.
[60]
In an application for the stay of a sale in execution, the court in
Duncan v Duncan
1984 (2) SA 310
CPD, had to assess whether an
offer of payment by the debtor ought reasonably to have been accepted
by the creditor. The court
first made the following observation:
‘
A…principle
which seems to me to be self-evident is that it is the creditor with
a writ in hand who has the weight of law
on his side to begin with.
He has taken all the steps necessary to get his money by means of the
rather ponderous legal process
involved and the circumstances which
are raised in order to prevent him from doing so by due process of
law must, in my view, be
most unusual
’
,
and,
thereafter, concluded that the creditor who had waited for some ten
months for her payment, was not obliged to await the debtor’s
receipt of the proceeds of certain immovable property that he had
recently sold, as opposed to proceeding with a sale in execution
on
the following day in respect of certain of the debtor’s other
immovable property.
[61]
In
Le
Roux
,
above,
the court confirmed that its discretion was not wide enough to enable
it to set aside a writ on the grounds of justice and
fairness where
the
causa
for the execution, in that case the judgment, still existed.
[62]
In the present matter, the salient facts relating to the tender are
unknown. At face value, on the defendant’s
own version, a
monthly payment of R1000-00 on a claim of R16 469-58, subject to a
debatement of the capital, is certainly not a
tender that the
plaintiff was reasonably obliged to accept, and cannot form the basis
for the setting aside of the writ.
At the time of the
defendant’s conditional and unacceptable tender, the
causa
for the execution still existed.
[63]
There was, accordingly, no substance in this ground for setting aside
the writ.
Defendant’s
Need to Perfect a Cause of Action for Damages:
[64]
The defendant openly contends that his main purpose in seeking to set
aside the writ is to perfect a cause of action for damages
against
those whom he feels have wronged him in the execution process.
His proposed action for damages on the alleged wrongful
execution
forms the basis of alternative relief that he wishes to claim
together with his main claim for damages, instead of instituting
two
parallel actions that may need to be consolidated later. He
states that he ‘
was…advised
that the setting aside of the warrant…is
(sic)
prerequisite
to a cause of action based on the invalidity of the warrant
’,
hence his application to set aside the writ.
[65]
The plaintiff contends that this is an improper basis upon which to
seek the order setting aside the writ. I agree.
The
primary purpose behind setting aside a writ is to prevent the
consequences of the execution of the writ, usually against
the
affected person’s property. There is no question of that
taking place in this case. The defendant is under
no danger of
any further execution against his property in relation to the writ in
question.
[66]
It is not quite clear why the defendant contends that the writ,
necessarily, has to be first set aside in order to perfect
his cause
of action for damages arising from the alleged wrongful execution of
the writ. It is, however, not for this court
to pronounce on
the point. In light of the fact that setting aside the writ may
serve no purpose at all, coupled with the
fact that defendant’s
real intention in wishing to set aside the writ are inconsistent with
the purpose of the provisions
of section 62(3) of the MCA, the court
is inclined to resist making the order.
Satisfaction
of the Writ:
[67]
The defendant, finally, relied on the ground of satisfaction as a
ground for setting aside the writ. This ground envisages
a
scenario where a judgment creditor attempts to execute a writ against
a debtor in circumstances where the debtor has already
settled the
full extent of his obligation to do so in terms of the judgment.
Probably thousands of writs are issued in the
various courts around
the country on a daily basis. Nobody ever applies to court, as
a norm, after satisfaction of the judgment
debt, to have the writ set
aside. That is simply because it is not necessary to do so.
It follows that this ground
may be relied upon mainly when the
judgment debtor is under threat of execution after he has already
fulfilled his legal obligation
in respect of the judgment debt.
[68]
Plaintiff’s counsel argued that the judgment and accompanying
writ, by virtue of the execution, were
functus officio
and now
no longer susceptible of being set aside. I agree. A
person or thing is
functus officio
after, ‘
having
fulfilled the function, discharged the office, or accomplished the
purpose, and therefore
[is]
of no further force or authority.
[It is]
applied to an officer whose term has expired, and who has
consequently no further official authority; and also to an
instrument,
power, agency, etc. which has fulfilled the purpose of
its creation, and is therefore of no further virtue or effect.
’
(Black’s
Law Dictionary, Online Legal Dictionary, 2
nd
Edition)
[69]
In this matter, the writ is
functus officio
and no good
purpose would be served by setting it aside. The defendant is
under no threat of further execution and is unlikely
to ever be.
His complaint about the writ has become moot. There is no merit
in his reliance upon this ground.
Delay
and Acquiescence:
[70]
Finally, the Plaintiff has exploited the point that the defendant had
taken an unreasonably long time to approach the court
for relief.
The writ was executed, initially, on 29 August 2011 when the
attachment was made, and, finally, on 19 October
2011 when the sale
in execution occurred. The defendant, however, applied to have
the writ set aside in about June 2014,
almost three years after it
was issued.
[71]
His main reason for the delay is that he did not have sufficient
funds to brief his attorney to proceed with the matter.
His two
secondary reasons are that the court file at the Johannesburg
magistrate’s court could not be accessed for many months,
and
that his attorney was rather busy and could not commence with the
application to set aside the writ for some three months.
[72]
In a country with a relatively high rate of unemployment and poverty,
a person’s impecuniousness must be taken into account
before
one deprives him of his access to the court. However, a measure
of reasonableness must also be introduced into the
assessment.
Sporadic periods of a person’s lack of funds may explain
some of the delay in taking legal steps, but the
person must,
firstly, set out adequate facts relating to his circumstances, and
secondly, the periods of delay for these reasons
cannot be
unreasonable in relation to those circumstances.
[73]
In this matter, the defendant is a medical doctor. He explained
his inability to accumulate funds without any facts of
substance.
He was employed for throughout the period in question. He
states that he had saved money from April 2012
to August 2012 in
order to brief an attorney, and that these funds were just enough to
enable him to proceed with the rescission
application. The
reasons that he could not instruct his attorney between October 2011
and April 2012 were not addressed.
The details of his income
and expenses were not addressed. The legal costs associated
with the rescission application, which,
at face value, seems to the
court ought to have been relatively low, were not addressed. He
merely states that he commenced
a new job in early 2013 which
entailed a ‘
great
reduction in
[his]
monthly
income and cash flow
’.
That is his sole explanation for the entire year of 2013. His
explanation is weak.
[74]
His excuse about the missing and/or inaccessible court file at the
Johannesburg magistrate’s court is weaker. A
litigant is
not without relief merely because a court file has become lost,
especially in relation to matters of an urgent nature.
If,
after a reasonably diligent search, the court file cannot be found,
the person who wishes to pursue his relief ought to re-construct
the
file to the best of his ability, with the co-operation of the
opposing party and, especially, the assistance of the court
management. Court managers are obliged to put measures in place
to ensure that interested parties are properly assisted in
reconstructing a lost court file. If necessary, the court
management must assist an interested party to secure copies of
missing documents or records from an opposing party. The
purpose of this exercise is to ensure that a person’s access
to
the court is not sacrificed at the altar of bureaucratic and
administrative inefficiency. The judicial officer before
whom
the matter presents will assess whether he has enough before him in
order to deliver a meaningful judgment. If not,
he may make an
appropriate order against any person, directing what further steps
are to be taken before the matter may be heard.
A wilful
failure to comply with the judicial officer’s order in this
regard may be met with an appropriate costs order.
[75]
In this matter, the defendant’s attorney failed to address this
issue firmly and decisively enough at the Johannesburg
magistrate’s
court. Whereas he ought to have pursued the matter with the
court management and, if necessary, with the
Chief Magistrate, he
appears to have been quite content to bask in the administrative
inefficiency that he complains of.
That is not what is expected
of an attorney, especially one whose client’s case may be
subject to time constraints.
[76]
The defendant’s explanation that his attorney was too busy to
give his matter attention for some three months is the
weakest of the
lot. A single practitioner who is fortunate enough to be too
busy to give a matter the appropriate attention,
ought to refer his
client to someone who can, especially if any further delay in
addressing the matter may compromise the
client’s case.
This reason for the delay is rejected peremptorily.
[77]
The court will accept, and generously so, that the defendant’s
lack of funds, together with his difficulties in accessing
the court
file assists him in accounting for a little portion of the almost
three-year delay. Viewed objectively, though,
his delay in the
matter has been unreasonably long.
[78]
The principle of finality in legal proceedings is fundamental, and is
expressed in the maxim
interest reipublicae ut sit finis litium
(in the interests of society as a whole, litigation must come to an
end). In the Canadian case of
Richard Atanasoff v Canada
(Commissioner of Corrections)
2001 FCT 411
, the court expressed
the position as follows, albeit in a slightly different context:
‘
The
imposition of time limits to dispute the validity of a legal decision
is of course meant to give effect to a basic idea of our
legal
thinking that, in the interest of society as a whole, litigation must
come to an end…,and the general principles adopted
by the
courts in dealing with applications to extend those limits were
developed with that in mind.
’
[79]
In the American case of
Desmond v Kramer
232 A.2d 470
(1967),
the Superior court of New Jersey rendered the following meaning to
the maxim:
‘
The
public interest demands an end to the litigation of the same issue.
’
[80]
The maxim is as much a part of our law as well. See
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
1989 (4) SA 940
CPD at 963I.
[81]
The need for litigation to end complements the need for legal
certainty in relation to the finality of disputes between citizens.
People move on, memories fade, and important documents become lost.
It cannot reasonably be expected of a person who has finalised
his
litigation to still be properly prepared many years later to address
issues arising from that litigation that could and should
have been
addressed within a reasonable time after the conclusion of the
litigation.
[82]
In this matter, the action had been concluded, and the plaintiff had
indicated its willingness to consent to the rescission
of the
judgment in September 2012 already. The defendant did nothing
of any substance for an unreasonably long time.
His attorney
argued that he cannot be said to have acquiesced in the matter as he
had always been intent on seeking the court’s
relief and had
taken steps that were indicative of his intentions. I cannot
agree. All that he really did was to complain
to his finance
house about the sale of his car which was, apparently, still the
subject of a credit agreement between them, he
lodged a complaint
with the South African Board of Sheriffs, the details of which are
unknown, and he merely launched an application
for the rescission of
the judgment about a year after the sale in execution, without
finalising it.
[83]
These steps are hardly the type of steps that are indicative of a
serious desire by the defendant to challenge the judgment
or
execution proceedings. He failed to defend the action when he
could have. In response to the attachment, he made
a written
offer to pay. In response to the removal of his attached
property, he paid a cash sum of eight thousand Rand (R8000-00).
He failed to apply for a stay of the writ or of the sale in execution
despite the fact that he was represented by an attorney at
that
time. He has not sought to enrol the rescission application in
almost three years. It also took him some three
years just to
apply to set aside the writ.
[84]
In
Wolstenholme v Boyes
1878 Buch 175, the facts were that the
sheriff had removed and sold in execution, goods belonging to a
judgment debtor that the
sheriff had not originally attached.
The judgment debtor sought to set aside the sale some eighteen months
later. The
court said the following:
‘…
there
was nothing to prevent
[the
judgment debtor]
from
employing an agent or attorney to appear on his behalf at the sale to
protest against a sale of the goods being made which
did not appear
on the
[sheriff’s]
inventory.
Nothing of the kind was done. The goods were sold, and eighteen
months after the sale the
[judgment
debtor]
brings
this
action to have the sale set aside as illegal….He must be held
to have renounced his right to have the objection.
’
[85]
In my view, the circumstances of the sheriff’s actions in
Wolstenholme
were
of a more serious nature than those in the present case, and the
delay in seeking the relief there, was far less than in the
present
matter. Yet the court in
Wolstenholme
declined to assist the debtor purely because of his delay in seeking
his relief.
[86]
In the present matter, the defendant had, ostensibly, acquiesced to
all of the consequences of the judgment. If not,
he was
certainly unjustifiably quiescent, and must be taken to have
forfeited his entitlement to seek an order setting aside the
writ.
[87]
Considered as a whole, I do not see how I may reasonably apply my
judicial discretion to conclude that the defendant has established
good cause for the writ to be set aside. All of the factors
that militate against the inference of good cause, cumulatively,
trump the sole factor that is in the defendant’s favour.
Although the magistrate’s reasons were ineloquently
expressed,
his ultimate decision to dismiss the application was correct.
[88]
The appeal is, consequently, dismissed with costs.
_________________________
A
CHAITRAM
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
I
agree.
_________________________
M
VICTOR
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances
:
On
behalf of the Appellant:
Mr F Geldenhuys (Attorney)
Instructed
by:
Frans Geldenhuys Attorneys
On
behalf of the Respondent:
Adv T Lipshitz
Instructed
by:
Roy Suttner Attorneys
Date
Heard: 06 October 2015
Handed
Judgment Delivered: 16 October
2015
[1]
Reported online in
Legalbrief, 07 October 2015