About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 314
|
|
Standard Bank of SA Ltd v Caster Transport CC and Others (13700/2012, 4444/2014) [2014] ZAGPPHC 314 (4 June 2014)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
REPORTABLE
CASE
NO: 13700/2012
DATE:
04 JUNE 2014
In
the matter between:
STANDARD
BANK OF SA LTD
.......................................................
Plaintiff
And
CASTER
TRANSPORT CC
..................................................
First Defendant
MOGAMAT
RIEDAA CASTER
.......................................SSSSS
Defendant
MARIAM
CASTER
.............................................................
Third Defendant
In
the matter between:
CASE
NO: 4444/2014
ABSA
BANK
LTD
................................................................................
Plaintiff
And
MARSHMAN
ZAYD
............................................................
First
Defendant
MARSHMAN
FAEEZA
…...............................................
Second
Defendant
In
the matter between:
CASE
NO: 12737/2014
ABSA
BANK
LTD
............................................................................
Plaintiff
And
NKOSINATHI
COLIN ZUMA
...........................................
First
Defendant
ANNE
VERONICA MABVUTO MASINA
...................
Second
Defendant
JUDGMENT
MAKGOKA, J:
[1]
This judgment arises from
my disquiet about the contents of the sheriffs’ returns of
service in three applications I heard
in the unopposed motion court
on 22 May 2014. In
Standard
Bank
v
Caster
Transport and Two Others
,
I postponed the application
sine
die
at the
instance of the parties, but retained the file for the purpose of
this judgment. I reserved judgment in the matters of
Absa
v
Marshman
and Another
and
Absa
Bank
v
Zuma
and Another
.
The latter two, which are for foreclosure on mortgage bonds, are
substantively in order, and it is not necessary to venture into
their
respective merits.
[2]
In
Standard
Bank Ltd
v
Caster
and Another
,
one of the sheriff s returns of service mentions that service was
effected on ‘Bongiwe, a domestic helper’. The other
return of service simply mentions ‘Bongiwe’ as the
recipient. In
Absa
Bank Ltd
v
Marshman
and Another
,
the documents are said to have been served on The Domestic Faith’,
while in
Absa
Bank Ltd
v
Zuma
and Another
,
the return of service says that the process was served on ‘Eliza,
Domestic worker’.
[3]
From these returns of
service, reference to the recipients stands out. There is no mention
of their marital status or surnames.
One thing is clear, though - all
of them are indigenous African women. Two things would have happened
during service of the documents.
Either the deputy-sheriffs never
bothered to enquire from the recipients as to their marital status or
surnames, or having made
such enquiries, the sheriffs decided to
ignore those particulars for the purposes of the returns of service.
Either way, the conduct
is decidedly undignified, demeaning, and in
clear violation of s 10 of the Constitution,
[1]
which guarantees everyone the right to inherent human dignity and the
right to have their dignity respected. The Constitutional
Court has
identified human
dignity
as one of the two ‘most important of all human rights, and the
source of all other personal rights’.
[2]
[4]
As a nation, we emerge from
a disgraceful and painful past, where an irrational system of
institutionalized racism was visited upon
indigenous African people,
where adult African women and men were contemptuously (and still are,
in some instances) referred to
as ‘girls’ and ‘boys’.
The contents of the returns of service in these matters are
reminiscent of that
era, and conjure up deeply painful memories for
the majority of the citizens of our country. It does not help that in
two of the
present matters, the deputy-sheriffs who served the
documents appear to be white men.
[5]
I have in the past raised
this issue in court, and expressed my detestation for it. Without
fail, each time I had sat in the motion
court, I have encountered
similar returns of service. From my experience, it is mostly
indigenous African people who are the subject
of such mode of address
in returns of service. I have yet to come across a return of service
referring to a non-indigenous African
person in the manner reflected
in the returns of service under consideration. To illustrate this
point, in the
Standard
Bank
matter,
for example, the same sheriff, had, during May 2013, served the
plaintiffs plea to the defendants’ counterclaim.
In his return
of service, he mentioned that he had served the process upon
‘
Mr
Caster, the husband.
’
[6]
The mindset discemable in
the returns of service referred to above, has no place in an open and
democratic society premised on the
foundational values of human
dignity and respect. The sheriffs perform a critical task in the
administration of justice, and thus
have an abiding duty to treat
everyone with dignity, irrespective of their race or social standing.
The side bar should also be
conscious of its duties, and decline to
accept returns of service couched in the manner referred to above. It
is not good enough
for attorneys to shrug off their shoulders and say
they have no control over the contents of the sheriffs’
returns. Of course
they have. The sheriffs act on their instructions,
and for that reason, the attorneys have a duty to ensure that returns
of service,
are properly worded. We are all enjoined to infuse a
constitutional ethos.
[7]
Next I consider what should
happen to the two applications which are substantially in order. To
balance the concerns raised above,
against the entitlement of the
applicants to the relief they have made out a case for, I intend
allowing the applications. This
should, however, not be construed as
an approval of the returns of service. This court will not hesitate
in future to refuse relief
where the returns of service fail to take
into account the concerns raised in this judgment.
[8]
With regard to the
deputy-sheriffs concerned, they should all be ordered to redress the
indignity they have visited upon the recipients
of their returns of
service. It might be argued that those recipients are not aware of
the manner in which they were referred to
in the returns of service.
That is beside the point. As stated above, the very fact that the
deputies who served court process
on them most likely did not enquire
as to their marital status and surnames, is, in my view, itself a
violation of their dignity.
[9]
This is in no way placing
form above substance, nor is one being pedantic. It is about a
constitutional right which has being violated.
Speaking for myself, a
court of law, as a repository of the values enshrined in the
Constitution, can ill-afford a supine attitude
in the face of
perpetuation of an injustice, which is a relic of the past.
[10]
In the result I make the
following orders:
1.
In case number 4444/2014
(Absa
Bank
v
Marshman
and Another)
an order is made in terms of a draft, which is dated, initialed and
signed by the court, and marked ‘X’;
2.
In case number 12737/2014
(Absa
Bank
v
Zuma
and Another)
an order is made in terms of prayers 1, 2 and 5 of the application
for default judgment dated 18 March 2014. Prayer 4 is postponed
sine
die
.
3.
The Deputy-Sheriff Mr S
Koopman, is ordered, at his cost, within 15 days of this order, to
verify the marital status and surname
of the person referred to as
Bongiwe in his returns of service dated 7 March 2014, with reference
numbers HI403/119 and HI403/120,
respectively, and thereafter serve
that person with a written apology for having referred to her merely
as ‘Bongiwe Domestic
Helper’ in one of the returns of
service referred to above;
4.
The Deputy-Sheriff Mr M
Pavkovich, is ordered, at his cost, within 15 days of this order, to
verify the marital status and surname
of the person referred to as
Faith in his returns of service dated 26 March 2014, with reference
number 2014/01/05101 and 2014/02/05101,
respectively, and thereafter
serve that person with a written apology for having referred to her
merely as The Domestic Faith’
in the returns of service
referred to above;
5.
The Deputy-Sheriff Ms N
Seti, is ordered, at her cost, within 15 days of this order, to
verify the marital status and surname of
the person referred to as
Eliza in her returns of service dated 25 February 2014, with
reference numbers 533821 and 533822, respectively,
and thereafter
serve that person with a written apology for having referred to her
merely as ‘Eliza Domestic Worker’
in the returns of
service referred to above;
6.
Each of the deputy-sheriffs
referred to above, shall, within 5 days after service of the written
apology referred to respectively
in paragraphs 3,4 and 5 above,
report to the Registrar of this court in writing as to compliance
with this order;
7.
The Registrar of this court
is directed to bring a copy of this judgment to the attention of the
Chairperson of the South African
Board for Sheriffs and to the
Director: Professional Affairs, the Law Society of the Northern
Provinces, who should, respectively,
ensure that a copy of this
judgment is circulated among their respective members.
T.M.
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD
: 22 MAY 2014
JUDGMENT
DELIVERED : 4 JUNE 2014
[1]
Constitution of the Republic of South Africa Act 108 of 1996.
[2]
S
v
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 144. See also
Christian
Education South Africa
v
Minister
of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC) para
36.