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[2012] ZAGPPHC 58
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Centwise 153 CC and Another v Tonrais CC and Others (70623/11) [2012] ZAGPPHC 58 (19 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 70623/11
DATE:19/04/2012
In
the matter between:
CENTWISE
153
CC
..............................................................................................
First
Applicant
SIFISO
ZIMBANDI
..........................................................................................
Second Applicant
and
TONRAIS
CC
...................................................................................................
First Respondent
MARY
HELEN HATTINGH
….....................................................................
Second
Respondent
FRED
HATTINGH
….......................................................................................
Third
Respondent
THE
SHERRIFF OF ZOUTPANSBERG MR MIKE VERMAAK IN HIS OFFICIAL
CAPACITY
AS SHERIFF OF ZOUTPANSBERG
….....................................
Fourth Respondent
TRANSNET
LTD
.................................................................................................
Fifth Respondent
JUDGMENT
MAKGOKA.
J:
[1]
On 22 March 2012 I made the following order:
1.
The first and/or third respondents are ordered to return to the
applicants, all goods that were released to them by the sheriff
on 3
November 2011.
2.
The first and /or third respondents are ordered to return to the
applicants, all goods attached but not removed by the sheriff
between
28 - 31 October 2011, which remained at the premises situated at 38
Grobler Street, Louis Trichardt,
3.
To facilitate paragraphs 1 and 2 of this order, the fourth respondent
is ordered to furnish the applicants with an inventory
of all the
goods attached from the premises, whether such goods were removed or
not;
4.
The Registrar is directed to bring a copy of this judgment to the
Board of Sheriff for such Board to consider whether the conduct
of
the sheriff in this matter was proper;
5.
The first, second and third respondents are ordered to pay the
applicants' costs;
6.
There is no costs order as between the applicants and the fourth
respondent.
I
undertook to furnish the reasons later. Here are the reasons.
[2]
The applicants seek, on an urgent basis, the return of certain goods
presently in the possession of the first and/or second
and/or third
respondents. An ancillary relief is sought against the fourth
respondent (the sheriff). The relief sought by the applicant
is
opposed by all of the first to fourth respondents. The fifth
respondent is not a party to these proceeding. For convenience
sake,
I shall refer to the first, second and third respondents simply as
"the respondents" and to the fourth respondent
as "the
sheriff'.
[3]
The facts are simple and largely common cause. On 22 June 2009 the
first applicant entered into three agreements with the first
respondent. The first was for the sale of a business in terms of
which the first applicant purchased from the first respondent
a
business known as Sunrise Foods, consisting of equipment, assets,
stock in trade, business name and estate commission. The purchase
price was for R490 000. Clause 20 of this agreement vested ownership
of the goods in the first respondent until the full purchase
price
had been paid by the first applicant. The second agreement was a
sub-lease agreement in terms of which the first respondent
sub-let to
the first applicant, the premises from which the business was
conducted. The first respondent in turn, rented the property
from
Transnet, the fifth respondent. The third agreement concerned the
sale of a motor vehicle in terms of which the first respondent
sold
to the first applicant a used motor vehicle for an amount of R55 000.
[4]
During or around October 2011, Transnet obtained judgment against the
first and second respondents for arrear rentals in respect
of the
premises on which the first applicant was a sub-tenant in terms of
the sub-lease referred to above. Two warrants were issued
pursuant to
the judgment: one for eviction, and the other for attachment of
goods. The warrants were executed during the period
28 - 31 October
2011, during which the some of the first applicant's goods on the
premises were also attached and removed, pursuant
to a lien that
Transnet had on all the property on the premises. Included in the
goods attached by the sheriff, were the items
that the first
applicant bought from the first respondent in terms of the first sale
agreement. Furthermore, there were items that
were brought onto the
property brought by the second applicant which had nothing to do with
the agreements between the parties.
Some of the attached goods were
not removed. The first and second respondents were simultaneously
evicted from the premises.
[5]
On 2 November 2011, the second applicant served an interpleader
summons on the office of the sheriff, laying claim to the goods
attached during the execution of the warrant of attachment. The
interpleader summons was also served on the attorney representing
the
first, second and third respondents.
[6]
On 3 November 2011 the sheriff released the attached goods after the
first respondent had satisfied the judgment debt. The sheriff
released the goods by removing them from his storage and placing them
on the sidewalk in front of the erstwhile leased premises.
He could
not return them to the premises as there was also a warrant of
eviction. The sheriff then handed the property attached
in terms of
the warrant, to the third respondent. These the third respondent
removed or on after 3 November 2011. At the time when
the sheriff
handed all the attached goods to the third respondent on 3 November
2011, he purportedly also gave the third respondent
written
permission to remove those goods still on the premises, which had not
been removed. This is the nub of the dispute between
the parties.
[7]
The applicants contend that since the sheriff was informed of the
first applicant's claim to the property, the sheriff should
have,
when releasing the goods, returned them to first applicant, and that
the third respondent acted mala fide in receiving the
goods from the
sheriff and not handing them over to the first applicant. The
contention here is that those goods were in the lawful
possession of
the first applicant when they were attached and on release by the
sheriff, they should have reverted to the first
applicant.
[8]
The respondents, on the other hand, deny that the first applicant had
been spoliated, as the property was removed pursuant to
a due process
by the sheriff, on the strength of a warrant of eviction and a
warrant of execution obtained by Transnet, in execution
of a judgment
properly obtained against the first and second respondents. It is
further contended that the conduct of the sheriff
in later handing
the goods over to the third respondent, could not amount to
spoliation of the applicants. In any event, the respondents
contend
that they were entitled to retain the goods in terms of clause 20 of
the first agreement as the applicants had failed to
pay full price
for the goods in terms of the first agreement. Furthermore, they
contend that the first applicant had failed to
pay the rentals in
terms of the sub-lease, and that it had further failed to pay the
instalment in respect of the car. The first,
second and third
respondents on that basis, argue that the first applicant was not
entitled to the return of the goods "even
if the process was
flawed".
[9]
During argument, I invited Mr Maritz, for the respondents to state
the basis at law, entitling the respondents to retain possession
of
the goods. Mr. Maritz submitted that given the fact that the
applicants, on the respondents' argument, cannot rely on spoliation
(as it is contended that the applicants were not spoliated when the
sheriff attached the goods, and were not in peaceful possession
when
the sheriff released the goods) the respondents were under no
obligation to state the basis on which they retain the possession
of
the goods handed to them by sheriff.
[10]
This submission is untenable. It should be borne in mind that among
the goods which the first and third respondents are having
in their
possession, are the goods that were brought onto the premises by the
second applicant, which have nothing to do with the
agreement between
the parties. No doubt this should be returned to the applicants. The
respondents have no basis to posses them,
and they have furnished
none With regard to those goods the respondents allegedly possess in
terms of clause 20 of the first agreement,
the short answer is that
that clause does not permit of seif-help remedy, allowing the
respondents to take the law into their hands.
For them to exercise
the right in terms of that clause, they had to obtain a court order.
[11]
In my view, it does not matter what the applicants call the remedy
they seek. Fact is, they have placed undisputed facts before
court
which indicate that the respondents have engaged in a form of
objectionable self-help by taking the law into their own hands.
Whether one calls it spoliation or parate executie, it does not
matter. This court cannot countenance a patently unjust and unlawful
conduct to persist. The matter must be resolved without legal
niceties. To do so on the basis of labels pinned to a set of facts
would be unnecessarily technisist.
"So
technical an avoidance of correcting a manifest injustice may be
regarded as morally questionable. It is also unsound according
to the
principles of law" -
As
was stated at para 16 in Roestorf v Johannesburg Municipal Pension
Fund (235/11)
[2012] ZASCA 24
(23 March 2012), dealing with an overly
technical point.
[12]
In my view, the situation is analogous to where the sheriff had
attached property in terms of a warrant, and the judgment later
rescinded. See in this regard, Janmat and Another v Bhana^, Maisel v
Camberleigh Court (Pty) Ltd2, Loitering v SA Motor Acceptance
Corporation (Pty) Ltd3, Standard Bank of SA v Peyper & Fourie4.
Mr Maritz sought to distinguish these authorities on the basis
that
where judgment had been rescinded, it was a nullity, from which no
rights could accrue, whereas in the present case the judgment
still
stands although the judgment debt had been satisfied. I see no real
distinction between the two situations in terms of the
real effect.
In either situation the sheriff loses any further right to persist
with the attachment and possession of the goods.
The end result is
the same, whether the goods are released from attachment pursuant to
a rescission of judgment or satisfaction
of the judgment debt. See
also Potgieter v Du Plessis5.
The
case against the sheriff.
[13]
As would be clearer in the order I am about to make, the contention
by the sheriff that he should only have been cited as a
party that
might have interest, is not sustainable. The sheriff, as set out
below, conducted himself in a manner that could have
created an
impression in the minds of the applicants that he was not impartial
and detached.
[14]
tt should be recalled that in the summary of facts, I stated that the
second applicant informed the sheriff of the first applicant's
claim
to the attached goods, and even served an "interpleader summons"
on the sheriff. The sheriff simply ignored it.
What should have been
the sheriff's conduct when he received the first applicant's claim to
the attached goods?
[15]
Rule 39(4) of the Magistrates Court Act 32 of 1944, provides that if
any property attached in execution is claimed by any third
party as
his or her property the sheriff shall deal with matter as provided in
rule 44. The provisions of rule 39(4) are couched
in peremptory terms
and impose a duty on the sheriff to act in terms of rule 44. The
sheriff has no residual discretion. See in
this regard Barclays
Western Bank v Upington Paneelkloppers (Edms) Bpk6, Sheriff Pretoria
East v Meevis 20017.
[16]
Rule 44 deals with interpleader claims. It reads:
1.
0) .......
(b)
................
(c)
....
(')
........................................
(ii)
....
(iii)
....
2.
(a) Where any person other than the execution debtor (hereinafter in
this subrule
referred
to as the 'claimant') makes any claim to or in respect of property
attached by the sheriff in execution of any process
of the court or
where any such claimant makes any claimant makes any claim to the
proceeds of property so attached and sold in
execution the sheriff
shall require from such claimant to lodge an affidavit in triplicate
with the sheriff within 10 days from
the date on which such claim is
made, setting out -
(i)
the claimant's full names, identity number and occupation;
(ii)
the claimant's residential address and business address or address
of
employment; and
(iii)
the nature and grounds of his or her claim substantiated by any
relevant
evidence.
(b)
(i) Within 15 days after the date on which the claim is made the
sheriff shall
notify
the execution creditor and all other sheriffs appointed for that area
who have submitted certificates referred to in rule
39(2)(c) of the
claim, (ii) Simultaneously with the notice referred to in
subparagraph (i), the sheriff shall deliver one copy
of the
claimant's affidavit to the execution creditor and one to the
execution debtor.
(c)
(i) The execution creditor shall, within 10 days of receipt of notice
of the claimant's claim and affidavit, advise the sheriff
in writing
whether he or she admits or rejects the claimant's claim, (ii) If the
execution creditor gives the sheriff notice within
the period stated
in paragraph (i) that he or she admits the claim, he or she shall not
be liablefor any costs, fees or expenses
afterwards incurred and the
sheriff may withdraw from possession of the property claimed. (3) (a)
If the execution creditor gives
the sheriff notice that he or she
rejects the claim, the sheriff shall within 10 days from date of such
notice prepared and issue
out a summons in the form prescribed for
that purpose in Annexure a calling upon the claimant and the
execution creditor to appear
on the date
specified
in the summons to have the claim of the claimant adjudicated upon.
[17]
Clearly the sheriff failed to comply with the provisions of rule
39(4). That the first applicant himself had prepared an interpleader
summons, does not avail the sheriff and it is irrelevant to the
question whether the sheriff complied with his peremptory statutory
duty. It does not divest him of that duty. See in this regard
Ketsikeli v Velapi
1923 CPD 119
where it was held that only the
sheriff, not the claimant(s) or execution creditor can take out an
interpleader summons in those
circumstances, and an interpleader
summons taken out in such circumstances by any person other that the
sheriff is illegal and
irregular.
[18]
When the sheriff released the property, he was also obliged to inform
the applicants. He did not. Rule 39(b) provides:
(b)
The sheriff shall give notice in writing of a withdrawal of
attachment and of the time and date thereof to the execution
creditor,
the execution debtor, all other sheriffs appointed for that
area or any other sheriff who has submitted a certificate referred to
in subrule (2)(c) and to any other person by whom a claim to the
property attached has been lodged with him or her: Provided that
the
property shall not be released from attachment for a period of four
months if a certificate referred to in subrule (2)(c) or
an
unsatisfied warrant of execution lodged under subrule (2) remains in
the hands of the sheriff.(my emphasis).
[19]
When the sheriff released the attached property, he already knew that
the applicants had laid a claim to the attached property.
Therefore
the claimants were clearly the persons envisaged in rule 39(3)(b).
The sheriff has, in this regard, also failed to observe
the clearly
peremptory provisions of the rule.
[20]
I therefore hold take a view that the sheriff has prima facie,
contravened rules 39(3) and (4) as well as rule 44 (2) (a) (b)
and
rule 3(a) of the Magistrate Court rules. His conduct should therefore
be referred to the Sheriff's Board for further investigation.
[21]
To sum up: the first and third respondents should return to the
applicants the goods that were attached by the sheriff. Costs
should
follow the cause between the applicants and the first and third
respondents. The second respondent made common cause with
the first
and third respondent. There was no substantial lis between the
applicants and the sheriff. Although I have prima facie
found the
sheriff to have acted contrary to the law, I have decided not to make
any costs order against him.
[22]
The above reasons resulted in the order referred to in para 1 of this
judgment.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 7 MARCH 2012
JUDGMENT
DELIVERED : 19 APRIL 2012
FOR
THE APPLICANTS : ADV N DE V DUVENHAGE SC
INSTRUCTED
BY : HAMMANN-MOOOSA INC, PRETORIA
FOR
THE 1st, 2nd & 3rd RESPONDENTS : ADV J D MARITZ SC
INSTRUCTED
BY : VENTER ATTORNEYS, PRETORIA
FOR
THE 4th RESPONDENT : ADV L D SCHOLTZ
INSTRUCTED
BY : KERN & DEKKER ATTORNEYS
PRETORIA
NO
APPEARANCE FOR THE FIFTH RESPONDENT.