About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2011
>>
[2011] ZAKZPHC 14
|
|
Ndaba v Mhlambi (AR 267/10) [2011] ZAKZPHC 14 (4 April 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 267/10
In the matter between
:
VINCENT DELANI NDABA
…...................................................
APPELLANT
and
JOSEPH JAMELA MHLAMBI
…...........................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 04 April 2011
SWAIN J
[1] The issue which falls
to be decided in the present appeal, is whether a warrant of
execution issued by the respondent, out of
the Orange Free State High
Court, under Case No. 3138/2001, in respect of the taxed costs of an
application, which was decided
in favour of the respondent against
the appellant, stands as a bar to the recovery by the respondent of
such taxed costs, in terms
of Section 65 M of the Magistrates’
Court Act No. 32 of 1944 (the Act), before the Magistrates’
Court for the district
of Durban.
[2] A summary of the
history of the matter is necessary to place this issue in context.
[2.1] The appellant was
an articled clerk employed by the respondent’s firm of
attorneys and brought an application before
the Orange Free State
Provincial Division of the High Court under Case No. 173/97, to
compel the respondent to cede his contract
of Articles of Clerkship
to another attorney. The application was opposed by the respondent
and dismissed on 06 February 1997,
with costs in favour of the
respondent.
[2.2] The costs order was
taxed by the respondent’s attorneys on 28 October 1997 in an
amount of R14,142.90, the bill of costs
and the Registrar’s
Allocatur, forming part of the record before us.
[2.3] The respondent then
instituted action for payment of the taxed costs under Case No.
17079/01 in the Durban Magistrates’
Court, which case was
withdrawn by the respondent, with a tender to pay the appellant’s
costs. This action is not relevant
to the issue to be decided in the
present appeal.
[2.4] The respondent on
05 July 2001 issued the said warrant of execution in respect of the
taxed costs, which resulted in the appellant
approaching the Orange
Free State High Court, with the consequent issue on 15 November 2001,
of a
rule nisi
calling
upon the respondent to show cause
inter alia
,
why the warrant of execution should not be declared null and void.
The rule was subsequently adjourned
sine die
,
and no further steps have subsequently been taken by either of the
parties, to advance the application.
[2.5] The respondent then
again instituted action in the Durban Magistrates’ Court for
payment of the said taxed costs, which
proceedings were again
withdrawn by the respondent, with a tender to pay the appellant’s
costs. This action is also of no
relevance to the issue to be decided
in the present appeal.
[2.6] The respondent then
acted in terms of the provisions of Section 65 M of the Act and filed
with the Clerk of the Durban Magistrate’s
Court , a certified
copy of the Judgment of the Orange Free State Provincial Division,
dismissing the application of the appellant
with costs. The
respondent also filed a certificate by the respondent’s
attorney dated 09 October 2008 specifying the amount
owing under the
Judgment, being the sum of R14,142.90 plus interest at the rate of
15.5 per cent per annum from 28 October 1997
(being the date of
taxation) to the date of payment. In the result and in terms of
Section 65 M of the Act, the judgment
“shall have all
the effects of a judgment of such court and any proceedings may be
taken thereon as if it were a judgment
lawfully given in such court
in favour of the judgment creditor, for the amount mentioned in the
affidavit or affirmation or the
certificate as still owing under such
judgment , subject however to the right of the judgment debtor to
dispute the correctness
of the amount specified in the said affidavit
or affirmation or certificate”.
Thereafter the
respondent issued a notice in terms of Section 65 A (1) of the Act,
dated 25 November 2008, calling upon the appellant
to appear on 04
February 2009, to enable the Court to enquire into his financial
position.
[2.7] The appellant filed
a notice of intention to oppose on 03 February 2009, before he
appeared at the Section 65 enquiry,
setting out his grounds of
opposition. Thereafter the appellant filed an opposing affidavit and
the respondent filed a replying
affidavit under Case No. 51382/2008.
[2.8] The appellant then
instituted further proceedings under Case No. 23986/2009 in the
Durban Magistrates’ Court to dismiss
the Section 65
proceedings. The respondent filed an answering affidavit and the
appellant filed a replying affidavit.
[2.9] Thereafter cases
51382/2008 and 23986/2009 were by agreement consolidated for the
purposes of the hearing.
[3] The basis upon which
the appellant sought an order dismissing the Section 65 proceedings,
initiated by the respondent, was that
the Magistrates’ Court in
Durban did not have jurisdiction to adjudicate on the Section 65 A
(1) application because
[3.1] The Section 65 (A)
(1) proceedings constituted a cause of action and/or a dispute
between the parties, which was based on
the same cause of action or
dispute, which formed the basis of the warrant of execution, which
was challenged in the Orange Free
State Provincial Division, on the
basis that the warrant of execution had become superannuated.
[3.2] The
rule nisi
which was adjourned
sine die
on 15 November 2001, was still
pending before that Court.
[3.3] The result sought
to be achieved in the Section 65 proceedings, is the same result
which would have been achieved by the challenged
warrant of
execution.
[3.4] The defence raised
was that of
lis pendens
, in that the respondent was precluded
from bringing the same action (or an action aimed at achieving the
same result) before another
court, while the action was still pending
before the original court, and for this reason the respondent was
precluded from bringing
Section 65 A (1) proceedings before the
Magistrates’ Court.
[4] The Magistrate after
hearing argument granted an order in terms of which
[4.1] The application
brought by the appellant opposing the Section 65 A (1) proceedings
under Case No. 23986/09 was dismissed with
costs.
[4.2] It was declared
that the Durban Magistrates’ Court possessed the necessary
jurisdiction to deal with the Section 65
A (1) proceedings arising
out of the Judgment granted by the Orange Free State Provincial
Division in Case No. 173/1997, as the
provisions of Section 65 M were
duly complied with.
[4.3] It was declared
that the application brought by the appellant before the Orange Free
State Provincial Division, was ancillary
to the Section 65 A (1)
proceedings before the Durban Magistrates’ Court and had no
effect on that Court’s jurisdiction,
in so far as the Section
65 A (1) proceedings were concerned.
[5] The appellant alleges
that the Magistrate erred in granting the order that he did, because
the warrant of execution and the
Section 65 proceedings are based on
the same cause of action, because in both the respondent seeks to
recover the legal costs awarded
to the respondent against the
appellant under Case No. 173/1997. The validity of the warrant of
execution which was challenged
before the Orange Free State
Provincial Division, it is alleged, has a direct bearing on the
Section 65 proceedings. Despite the
fact that the appellant, in his
heads of argument, based his attack upon the decision of the
Magistrate on the ground that the
Magistrate had erred in failing to
uphold the plea of
lis alibi pendens
, in argument before us,
the appellant who is an Advocate and appeared in person, disavowed
any reliance upon such a plea in arguing
the appeal. In my view
however, it is nevertheless necessary to deal with the validity of
such a plea on appeal, not only because
this was the basis upon which
the Magistrate dismissed the appellant’s application, but for
the further reason that during
the appellant’s argument before
us, he made submissions which I understood to be of relevance to such
a plea. I will therefore
initially deal with the validity of such a
plea and thereafter I will deal with the further argument advanced by
the appellant
for the first time on appeal, which is based upon the
provisions of Section 65 E (4) of the Act. It should be noted that
the appellant
also disavowed reliance upon a challenge that was
raised before the Magistrate and in his heads of argument, concerning
the authority
of the attorney to represent the respondent and depose
to an affidavit on behalf of the respondent.
[6] The basic flaw in the
appellant’s argument based upon a plea of
lis alibi pendens
is that is confuses the recovery of the costs of the original
application between the parties, under Case No. 173/1997, with the
determination of the
lis
between the parties in that
application, being the dispute as to whether the Articles of
Clerkship of the appellant should be ceded.
The recovery of the costs
has nothing to do with the cause of action which was decided in that
application. The procedures which
the respondent may then pursue to
enforce the costs order, or to collect the amount owed in terms of
the costs order, form no part
of the original cause of action, which
was decided by the Orange Free State Provincial Division.
R S A Faktors v
Bloemfontein Township Developers
1981 (2) SA 141
(O)
at 145 B – C
[7] A procedure to
enforce a costs order, where the costs have been taxed, whether by
way of a writ of execution, or by way of a
Section 65 procedure in
terms of the Act constitute the enforcement of an order of court and
not the prosecution of a cause of
action. The object of Section 65 A
of the Act is to conduct an enquiry into the financial position of
the judgment debtor so that
the Court can make an order which has as
its aim, the settlement of the judgment debt. The object of a notice
in terms of Section
65 A (1) of the Act, is to enforce the already
existing judgment debt.
Lombard v Minister
van Verdediging
2002 (3) SA 242
(T)
at 245 F – G
Equally, the issue of a
writ of execution in terms of Rule 45 of the Rules of Court has, as a
necessary pre-requisite, a judgment
of the Court pronounced in favour
of a party. As stated by Didcott J in
Lurlev v Unifreight
General Services & Others
1978 (A) SA 74
(DCLD) at 79 A – C
“
The ordinary
sort of judgment or judicial order has at least two functional
components. First of all, it is a command to the party
at whom it is
aimed, coupled in an appropriate case with a warrant to the sheriff
to enforce the command. Secondly, it regulates
the legal relationship
between the parties and settles their mutual rights and obligations,
to the extent necessary for its grant.
That, after all, is what makes
its effect
res
judicata
.
Even the simplest judgments generally contain this second element. A
default judgment for the price of goods sold and delivered
is, in
addition to all else, a judicial declaration that the plaintiff has
sold and delivered the goods to the defendant and that
the defendant
is liable to pay their price to the plaintiff. In essence, most
judgments and orders are thus declaratory orders
supplemented by
positive directions, and this is no less so because declaratory
orders in a pure form are sometimes claimable on
their own”.
It is this inherent
duality in the function of a judgment, or order, which is highlighted
in the present case. The Judgment of the
Orange Free State Provincial
Division, settled the mutual rights and obligations of the parties,
in respect of any cession of the
appellants Articles of Clerkship, as
well as the appellant’s liability for the legal costs of the
application. The judgment
also constituted a command to the appellant
to pay the legal costs. The issue of a writ of execution by the
respondent, to enforce
the command which was directed at the
appellant, and the challenge raised by the appellant to the validity
of the writ, cannot
be regarded as a
“pending action”
which arises from
“the same cause of
action”
within the meaning of those terms, as is
required to support a plea of
lis pendens.
[8] I am therefore
satisfied that the Magistrate was correct in dismissing the plea of
lis pendens.
[9] Turning to the
argument advanced based upon Section 65 E (4) of the Act. The Section
reads as follows:
“
(4) If the
judgment creditor issues or causes to be issued a warrant of
execution against movable property belonging to any judgment
debtor
before the hearing of proceedings in terms of a notice under section
65A(1) and a
nulla
bona
return is made, the judgment creditor shall not be entitled to costs
in connection with the issue and execution of such warrant
unless the
court on good cause shown orders otherwise at the hearing of the
proceedings”.
[10] As I understood the
argument, the meaning of this section is that a judgment creditor is
precluded from bringing an application
in terms of Section 65 A (1)
of the Act, where a writ has previously been issued by the judgment
creditor.
[11] This is quite
plainly not the meaning of this section, the object of which
“is
undoubtedly to avoid the issuing of warrants of execution against
movable property which may prove abortive”.
Jones & Buckle:
The Civil Practice of the Magistrates’ Courts in
South Africa Vol 1
pg 273
The Section has no
bearing upon the right of the judgment creditor to institute Section
65 proceedings, after a warrant of execution
has been issued. All
that it makes provision for is the deprivation of the judgment
creditor’s costs, in connection with
the issue and execution of
the warrant, where a
nulla bona
return is made.
[12] There is accordingly
no substance to the argument.
I make the following
order
The appeal is dismissed.
The appellant is ordered
to pay the respondent’s costs.
__________
K. SWAIN J
________________________
J. PLOOS VAN AMSTEL A
J
Appearances
/
Appearances:
For the Appellant
:
In person
Instructed
by
:
Ponoane Attorneys
Durban
C/o
Memka & Associates
Pietermaritzburg
For
the Respondent :
Mr. L. M. Poldbielski
Instructed
by :
Louis M Podbielski
Durban
C/o
Austen Smith
Pietermaritzburg
Date of Hearing :
28 March 2011
Date of Filing of
Judgment :
04 April 2011