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2024
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[2024] ZAMPMBHC 13
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Ncongwane and Another v Body Corporate Drysdale 24 and Others (575/2024) [2024] ZAMPMBHC 13 (26 February 2024)
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 575/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE:
26 February 2024
SIGNATURE
In the matter between:
MANDLA
MACBETH NCONGWANE 1
ST
APPLICANT/APPELLANT
MACBETH
INCORPORATED 2
ND
APPLICANT/ APPELLANT
and
BODY CORPORATE DRYSDALE 24 1
ST
RESPONDENT
CHRISTO SMITH ATTORNEYS
2
ND
RESPONDENT
SHERIFF OF THE MAGISTRATE 3
RD
RESPONDENT
COURT: MBOMBELA
OFFICE OF THE MAGISTRATE
4
TH
RESPONDENT
COURT: MBOMBELA
JUDGMENT
RATSHIBVUMO J:
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives by email. The
date and time for hand-down
is deemed to be 08H00 on 26 February 2024.
Introduction
[1]
This
matter came before this court by way of urgent application wherein the
Applicant seeks an order in the following terms:
1.1
That this application be
treated as an urgent application in that the degree of urgency is so great that
it justifies deviation
from the requirements for forms, services, notifications
and time periods provided for in the Rules of the above Honourable Court.
1.2
The Writ of Execution issued
in favour of the First Respondent against the First Applicant in the action
proceedings under case
number 2326/2018, is set aside, alternatively stayed pending
finalisation of the appeal.
1.3
That the Third Respondent is hereby
interdicted and restrained from executing the Writ of execution issued in
favour of the First
Respondent against the Applicant in the action proceedings
under the case number 2326/2018, pending finalisation of the appeal under
case
number A10/2024.
1.4
That insofar as the Third
Respondent may have nonetheless executed the Writ and removed the Applicants
assets or property, he or
she be ordered to forthwith return same to the
Applicants, and immediately so.
1.5
The relief in prayer 2, 3 and
4 above shall operate as an interim interdict with immediate effect pending
finalisation of
i.
the appeal process under case
number A70/2022;
ii.
the appeal process under case
number A10/2024; and
iii.
the rescission application
due to be heard on 22 February 2024
1.6
That any of the Respondents
who opposes the application, pay the costs thereof.
The application
is opposed by the First Respondent.
Background
.
[2]
As it can
be gleaned from the case numbers, this application is rooted in an action
instituted in 2018 by the First Respondent against
the First Applicant at
Mbombela Magistrate Court over alleged outstanding levies. The First Respondent
is a body corporate of which
the First Applicant is a member. The action was
defended by the First Applicant represented by the Second Applicant. Given a
number
of years that have lapsed without finality in this matter, it is
necessary to unpack the chronological developments leading to this
application.
[3]
Following a notice to defend, filed by the First
Applicant, the First Respondent applied for summary judgement. An external
magistrate
was outsourced from Bushbuckridge to hear the application for
summary judgment. The outsourcing of judicial officers from another
jurisdiction, to Mbombela Magisterial district, was done in respect of all the
applications preceding the trial and the trial itself.
Summary judgment was
dismissed on 23 May 2019. Pleadings were exchanged and the matter was certified
trial ready on 22 January
2020. It was thereafter set down for trial which did
not proceed on five different occasions for unspecified reasons.
[4]
The First Applicant thereafter brought an application to
amend the plea and to file a counter claim. This was after the First Respondent
objected to the notice he had filed to that effect. That application was heard and
dismissed on 01 March 2022. On 04 March 2022,
the First Applicant asked for the
reasons for the order dismissing his application. The Magistrate furnished the
reasons on 08
September 2022.
[5]
There is dispute between the Applicants and the First
Respondent as to whether the First Applicant appealed against the order
dismissing
the application heard on 01 March 2022. It suffices for present
purpose that the First Applicant attached to the founding affidavit
in this
application, a document titled NOTICE OF APPEAL reflecting case number
A70/2022, apparently issued from the High Court
Division of Mpumalanga,
Mbombela (main seat). The Registrars date stamp on it reflects that it was
issued on 28 October 2022.
The dispute is around the procedure in noting a
notice of appeal which the First Respondent argues that it was not in
compliance
with Rule 51(4) of the Magistrate Court Rules, as it was not noted
at the Magistrate Court in question.
[6]
On 17 July 2023, the First Respondent approached the
Senior Magistrate, Mbombela for trial date allocation and for the magistrate
to
hear the trial to be secured in advance. The date allocated for trial was 14
November 2023. Notice of set down was served on
the Second Applicant on 30
August 2023. On 14 November 2023, the First Applicant was not in court attendance
and so was his legal
representative. Judgment was as such granted in favour of
the First Respondent by default in the amount of R39 690.55 plus
interests
and costs.
[7]
A copy of the judgment was served on the Applicants by
the First Respondents attorneys on 15 November 2023. On 27 November 2023,
the
First Applicant served the First Respondent with a notice of application for
rescission of judgment. This notice filed in court
on 28 November 2023. According
to the notice, the application for rescission of judgment would be heard on 27
November 2023. This
date had already passed at the time of filing of the
notice. This gave rise to the First Respondent arguing that there was no valid
notice of rescission of judgment. Nevertheless, the First Respondent filed the
notice of intention to oppose the rescission application
on 30 November 2023.
[8]
The aspect of a wrong or past date became a bone of
contention in the answering affidavit in this application. It also appears to
have played a major role in the urgent application heard by the Magistrate which
I shall deal with hereunder. In a replying affidavit,
the First Applicant attached
a document showing that the notice of application for rescission has since been
amended to reflect
a date of 22 February 2024 as the date on which the
application will be heard. The notice to amend the motion was served on the
First Respondent on 30 January 2024.
[9]
On 19 January 2024, the First Applicant was served with
a warrant of execution by the Third Respondent. Attempts to get the First
Respondents attorneys to undertake that they will not execute this, pending
the hearing of the rescission application, did not
yield fruits. On 29 January
2024, the First Applicant brought an urgent application premised on section 78
of the Magistrates Courts
Act
[1]
to interdict or stay the execution of the writ (section 78 application / order).
This application was dismissed by the Magistrate
on the same date. On 30
January 2024, the First Applicant filed an appeal against the Magistrates section
78 order. The appeal
is recorded as case no. A10/2024. The existence of this
appeal does not appear to be in dispute. Even if it was disputed, the First
Respondent conceded that where an appeal is not in compliance with the required
procedures for launching an appeal, it is in the
discretion of the appeal court
to condone such non-compliance and hear the appeal.
[10]
Following the Magistrates section 78 order, and on 06
February 2024, the Third Respondent and/or its employees proceeded to attach
and remove the First Applicants property for execution. The First Respondent
attempted to stop them by informing them that there
was an appeal against the
section 78 order. The Third Respondent and/or its employees informed him that
they had a legal opinion
to the effect that they should ignore the alleged appeal.
They however refused to share the said opinion with him. It is against
this
background that this court was approached on 19 February 2024, on urgent basis
seeking the relief as per paragraph 1 above.
[11]
At the time this application was heard on 19 February
2024, counsel for the Applicant had not filed heads of argument. He was
afforded
the opportunity to do so which he managed to do on 21 February 2024.
The First Respondents legal representative filed his supplementary
heads of
argument in response thereto on 22 February 2024. For these reasons, the date scheduled
for the application for rescission
of judgment, 22 February 2024 would have
passed by the time this judgment is handed down. Depending on whether the
application
was heard and the outcome thereof, this judgment could be academic.
It remains important that all the issues raised here be dealt
with not only
because the application is still pending, but also for precedence purposes.
Issues for
determination.
[12]
This judgment boils down to answering whether this court
has jurisdiction to hear this application. The flip side of this question
is
the determination of a proper remedy available for the Applicants pending the
appeal launched against the Magistrates section
78 order.
The law
[13]
Section
78 of the Magistrates Courts Act
[2]
was quoted extensively in this hearing by both the First Applicant and the
First Respondent. It provides,
Where an appeal
has been noted or an application to rescind, correct or vary a judgment has
been made, the court may direct either
that the judgment shall be carried into
execution or that execution thereof shall be suspended pending the decision
upon the appeal
or application. The direction shall be made upon such terms, if
any, as the court may determine as to security for the due performance
of any
judgment which may be given upon the appeal or application.
[14]
Jones and Buckle
[3]
remark that c
ourt means a magistrates court for any district or regional
division
as defined in section 1 of the Magistrates
Courts Act and that only the court (albeit not the same magistrate) granting
the order
appealed against has the power to make an order under this section. Interestingly,
the legislation did not make a provision for
the appeal in respect of the
discretion exercised by the Magistrate in terms of this provision.
[15]
The Superior Courts Act
[4]
has a similar and broader provision in respect of execution of orders granted
by the High Courts. Unlike the provision in the Magistrates
Courts Act, the
Superior Courts Act provides a remedy for the aggrieved party by granting such
party an automatic right to appeal
against the execution or enforcement orders (or
the refusal thereof) by the High Courts.
[5]
This lacuna in the Magistrates Courts Act led to conflicting decisions on
whether enforcement orders are appealable.
[6]
This question was finally settled by the Constitutional Court in
Mathale v
Linda and Another
[7]
when it unanimously held that section 78 orders were appealable.
[16]
The
general principles applicable in granting or refusing a stay in execution were summarised
by Waglay J in
Gois t/a Shakespeare's Pub v Van Zyl and Others.
[8]
The appeal court would have
to consider if these principles were properly applied without any misdirection.
This is however not
an appeal court. The fact that the Applicants were cited as
Applicants/Appellants does not change the status or nature of the
case before
court today. This matter was initiated as an application and was allocated to a
single judge, which would not have
been the case if it was an appeal. In as far
as this court was expected to review the findings of the Magistrate in respect
of
section 78 application, this is a wrong forum.
Discussion
[17]
The First Applicants predicament is that after an
appeal against section 78 order, the Third Respondent came some six days later
to attach the property. Of what value would the appeal be if at the time of its
hearing, the subject forming part of the appeal
would be moot as the property
would have been attached and sold? The First Respondent does not question the
right of the First
Applicant to challenge the section 78 order on appeal. Its
attitude however is that the Applicants should have used the appeal process
as
opposed to bringing the urgent application before the High Court.
[18]
I am not certain if the route proposed by the First
Respondent would result in anything different to what the Applicants wish to
achieve here. The appeal process, even when undertaken on urgent basis,
involves the transcription of records which may take weeks,
depending on the volume
of material to be transcribed. What guarantee does the First Applicant have
from the First Respondent that
while the records are being transcribed or the
process of appeal is unfolding, his property would not be attached? The First
Applicant
did launch an appeal, but this was not enough to safeguard his
property, pending the outcome.
[19]
The First and the Second Respondents were asked to give
an undertaking in writing to the effect that they will not seek to execute
the
writ, and they failed to do so. It was already brought to their attention that
there was an appeal launched when they sent
the Third Respondent to go and
attach the First Applicants property. It does not look like there would be any
recourse for the
First Applicant in the route proposed by the First Respondent,
even if it was undertaken on urgent basis. If the pending appeal
could not stop
them from attaching the property, what in the urgency would achieve that? The
reality is that the hearing of the
appeal would be inconsequential if the writ
intended to be stayed would have been executed. This would be tantamount to
denying
the First Applicant the right to appeal in my view.
[20]
Further submissions by the First Respondent reveal what
could be the real underlying issues. It was submitted that the First Applicant
was playing the Stalingrad or delaying tactics hence this action has not seen
the end since 2018. This concern is amplified in
the supplementary heads of
argument wherein it is suggested that allowing a stay in execution could result
in the whole process
being stagnant as a result of the First Applicant not
prosecuting the appeal.
[21]
Given the year in which the action was initiated, the
concerns of the First Respondent are not without merit. It should however be
noted that none of the parties apportion the blame for the delay in finalising
the trial on each other particularly on why the
trial could not proceed on
any of the five days it was set to be heard. The courts concern though is, presuming
that the First
Applicant is indeed playing delaying tactics; should it then
ignore the irreparable harm or substantial injustice he could suffer
as a
result of the denying him the right to appeal?
[22]
Perhaps facts giving rise to the argument that the First
Applicant was delaying the proceedings deliberately were laid before the
Magistrate in the section 78 application. Such facts were however not placed
before this court and as such, I am unable to make
a finding thereto. Presuming
that there is merit in this argument, I remain unconvinced that such a conduct
can result in the court
lawfully depriving a litigant of what is rightfully
within their rights.
[23]
The court can however put measures in place to avoid the
eventuality of what is feared, from materialising. Such measures can include
giving the timeframes within which an appeal should have been prosecuted and
finalised and specifying the particular appeal for
which an interdict is
applicable, where there are several appeals. I am of a view that unless this
court intervenes by way of granting
the sought interdict, the First Applicant
stands to suffer irreparable harm or substantial prejudice.
[24]
As for costs, I am of the view that each party was
exercising its rights that are also protected in the Constitution. The First
Respondent was a successful candidate in the Magistrates Court both in respect
of the action and the section 78 order. With the
litigation spanning over five
years, the First Respondent, being a body corporate that still has to be
functional and of service
to its members, seeking execution once the judgment
is obtained in its favour seems to be the natural thing to do, for which it
cannot be faulted. The same can be said in respect of its opposition to this
application.
[25]
For the aforesaid reasons, I make the following order:
25.1
The Applicants
failure to comply with the forms and service provided for in the Uniform Rules
of the Court is condoned. This matter
is dealt with on an urgent basis as
envisaged in Rule 6(12) of the Uniform Rules;
25.2
Subject
to paragraphs 25.5 and 25.6 below, the
Writ of Execution issued in favour of
the First Respondent against the First Applicant in the action proceedings
under case number
2326/2018, is stayed pending finalisation of the appeal under
case no. A10/2024;
25.3
The Third Respondent is
hereby interdicted and restrained from executing the Writ of execution issued
in favour of the First Respondent
against the Applicant in the action
proceedings under the case number 2326/2018;
25.4
Insofar as the Third
Respondent and/or the employees may have nonetheless executed the Writ and
removed the Applicants assets or
property, they are ordered to forthwith
return same to the Applicants;
25.5
The
orders in paragraphs 25.2, 25.3 and 25.4 above shall operate as interim
interdict with immediate effect pending the finalisation
of the appeal under
appeal case no. A10/2024; which should be prosecuted and finalised within 6
(six) months from the date of this
order.
25.6
This
interdict shall lapse after the expiry of 6 (six) months from the date of this
order, unless this court or the appeal court
hearing the appeal under case no.
A10/2024, has, upon good cause shown, extended it further for a period it deems
fit;
25.7
The First
Applicant and the First Respondent are ordered to complete Form F, within 30
days from the date of this order, with a
view to have the appeal in appeal case
no. A10/2024 finalised within 6 (six) months from the date of this order. In
case of disagreement,
the party/parties should approach the Registrar of this
court who shall place the matter before a judge for case management of the
appeal
and completion of Form F;
25.8
There
is no order as to costs.
TV RATSHIBVUMO
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION
FOR THE APPLICANTS: ADV
G SHAKOANE SC
INSTRUCTED BY: MACBETH
ATTORNEYS INC
MBOMBELA
FOR THE FIRST RESPONDENT: MR.
C SMITH
INTRUSCTED BY: CHRISTO
SMITH ATTORNEYS INC
MBOMBELA
DATE HEARD:
19 FEBRUARY 2024
JUDGMENT
DELIVERED: 26 FEBRUARY 2024
[1]
See paragraph 13 below for
details.
[2]
Act 32 of 1944
[3]
See Jones and Buckle: Civil
Practice of the Magistrates Courts in South Africa: Act and Commentary under
sec 78.
[4]
See section 18 of the
Superior Court Act no. 10 of 2013.
[5]
See section 18(4) of the
Superior Court Act
supra
.
[6]
In
Mathale v Linda and
Another
(A507/2013) [2014] ZAGPPHC 779 (2 October 2014)
, this
question was raised but the court left it open. In paragraph 7 of the judgment,
Msimeki J referred to the following cases
where it was held that
High Court orders for enforcement or
execution pending an appeal were not appealable:
Minister of Health and Others v Treatment
Action Campaign and Others
[2002] ZACC 16
;
2002 (5) SA 703
(CC);
Tuckers Land Development Corporation (Pty) Ltd
v Soja (Pty) Ltd
1980 (1) SA 691
(W) at 699;
Livanos v Absa Bank Ltd
[1999] 3 All SA 221
(W) at 225B-C and
South African Druggists Ltd v
Beecham Group pic
1987 (4) SA 876
(T) at 800A-B
[7]
2016 (2) SA 461 (CC).
[8]
2011 (1) SA 148
(LC) at
155I-156B.