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[2011] ZAKZDHC 69
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Nu-Shelf Investments CC v Bangaar and Others (13703/06, 13704/06) [2011] ZAKZDHC 69; 2012 (3) SA 136 (KZD) (11 April 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 13703/06
13704/06
In the matter between
Nu-Shelf Investments
CC
….....................................................
Applicant
and
Strinivasaen Krishna
Bangaar
…..............................
First
Respondent
The Sheriff Durban
Central
…...............................
Second
Respondent
JUDGMENT
Delivered on: 11 April
2011
STEYN J
[1] The matter was argued
on the issue of costs of the applications. The factual background to
the applications is that the first
respondent, an attorney of this
court, represented the applicant in litigation. After his mandate was
terminated he submitted a
bill of costs to the taxing master, who
after taxation issued a writ of execution against the Applicant for
fees. Pursuant to the
writ, an attachment of goods was made and the
court on 20 August 2010 ordered that the writ be stayed pending the
finalisation
of the applications.
On 15 November 2010 the
first respondent withdrew his opposition by filling a Notice of
Withdrawal of Opposition. The first respondent,
however, never
tendered any costs.
[2] On 11 March 2011,
when the matter was argued the first respondent appeared in person
and on behalf of the applicant Mr Broster
appeared.
[3] The first respondent
persisted in his argument that the writ was validly issued. He placed
reliance on Rule 70 of the Uniform
Rules of Court, in support of his
submission. Mr Bangaar’s argument goes as follows: Since Rule
70(1) allows for the taxation
of a bill, such taxed bill should be
considered as an order and henceforth it allows for a writ to be
issued. In my view this contention
fails to take account of the
provisions of Rule 45.
[4] I am satisfied that
Rule 45 of the Rules should be applied, more specifically Rule 45(1)
and (2) that reads as follows:
“
(1) The
party in whose favour
any
judgment of the court
has
been pronounced may, at his own risk, sue out of the office of the
registrar one or more writs for execution thereof as near
as may be
in accordance with Form 18 of the First Schedule: Provided that,
except where immovable property has been specifically
declared
executable by the court or in the case of a judgment granted in terms
of rule 31(5) by the registrar, no such process
shall issue against
the immovable property of any person until a return shall have been
made of any process which may have been
issued against his movable
property, and the registrar perceived therefrom that the said person
has not sufficient movable property
to satisfy the writ.
(2) No process of execution shall
issue for the levying and raising of any costs awarded by the court
to any party, until they have
been taxed by the Taxing Master or
agreed to in writing by the party concerned in a affixed sum:
Provided that it shall be competent
to include a writ of execution a
claim for specified costs already awarded to the judgment creditor
but not then taxed, subject
to due taxation thereafter, provided
further that if such costs shall not have been taxed and the original
bill of costs, duly
allocated, not lodged with the sheriff before the
day of the sale, such costs shall be excluded from his account and
plan of distribution.”
(My emphasis)
In terms of the rule an
attachment should only be made on a bill of costs, duly taxed, if it
rises from an order contained in a
judgment. (See Herbstein and Van
Winsen ‘The Civil Practice of the High Courts of South Africa,
5
th
ed, at 1024).
Such order or judgment is
a pre-requisite to a writ being issued. In
Van
Dyk v Du Toit en ʼn Ander
,
1
Cille J held:
“
Daarop
het eerste respondente die voormelde lasbrief tot uitwinning
uitgeneem by die Griffier. Dit het natuurlik geskied op the
basis dat
sy wel ʼn
vonnis
in haar
guns het. Hofreël 45(1) stel dit as ʼn voorvereiste vir die
uitneem van so ʼn lasbrief.”
2
(My emphasis)
[5] In the matter of
Bredenkamp
v Comax Wholesalers (Pty) Ltd and Others
3
Corbett J, as he then
was, stated it as follows:
“
The other
principle which to my mind is of relevance is that, generally
speaking,
a
writ of execution can only be executed
against
property which belongs to the debtor or in which the debtor has some
executable interest, and furthermore – this is
almost too trite
to be stated – that, generally, property cannot be made the
subject of an order of attachment in pursuance
of a writ of execution
unless
judgment has been taken against the debtor
.”
4
(My emphasis)
[6] Given the
circumstances it is clear from the withdrawal of opposition that the
applicant was entitled to lodge the applications
in protecting his
rights. Once the opposition was withdrawn, it was justified to
reasonably expect costs to follow the result.
This did not happen in
this case.
[7] There is no longer
any opposition to the applications, the rule issued is hereby
accordingly confirmed. First Respondent is
ordered to pay the costs,
such costs to include the costs of the opposed application.
____________________________
Steyn, J
Date of Hearing: 11 March
2011
Date of Judgment: 11
April 2011
Counsel for the
applicant: Adv J P Broster
Instructed by: Mooney
Ford Attorneys
Counsel for the
respondents: Mr Bangaar (in person)
Instructed by: Henry
Selzer Attorneys
1
1993
(2) SA 781
(O).
2
At
782 J – 783 A.
3
1965
(2) SA 876
(C).
4
At
879B-C.