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[2024] ZAFSHC 218
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Sunshine Sugar Supplies (Pty) Ltd v Sheriff of the High Court Bloemfontein East, Free State and Others (1299/2024) [2024] ZAFSHC 218 (16 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO/YES
CASE NO.: 1299/2024
In
the matter between
:
SUNSHINE
SUGAR SUPPLIES (PTY) LTD
Applicant
And
THE
SHERIFF OF THE HIGH COURT
BLOEMFONTEIN
EAST, FREE STATE
First
Respondent
THE
SHERIFF: PETRO ROODT
Second
Respondent
TOYOTA
FINANCIAL SERVICES LIMITED
Third
Respondent
[Registration
number: 1982[…]]
Bench:
M Opperman J
Heard
:
2 May 2024
Delivered:
16 July 2024. This judgment was handed down in
court and electronically by circulation to the parties’
legal representatives
via
email and release to SAFLII on 16 July 2024. The
date and time of hand-down is deemed to be 15h00 on 16 July 2024
Summary:
Costs – urgent application –
conduct of sheriff of the court
ORDER
It is ordered that the
applicant shall pay the costs of the application, including counsel’s
fees, on scale B. The costs to
include the costs incurred for the
postponement of 13 March 2024.
JUDGMENT
INTRODUCTION
[1]
The issue here is of costs for an urgent
application that was instituted by the applicant on 5 March 2024 and
set down for hearing
on 13 March 2024. The application on the main
relief claimed was abandoned by the applicant as will be shown later.
[2]
The applicant, in main, wanted for
the
respondents to be compelled to “attach, remove and keep a
Toyota Hilux with VIN: AHT[…] and registration number
HSM […]
until the finalisation of interpleader
proceedings and/or such extended period as agreed to between the
parties
.” They also demanded t
hat
“the second respondent be ordered to pay the costs of the
application as on the scale between attorney and client in her
personal capacity, jointly and severally with the first respondent.”
(Emphasis added)
[3]
The
applicant and the first and second respondents participated in the
litigation and hearing on costs on 2 May 2024. Toyota Financial
Services Limited (TFS), the third respondent, did not participate
here and only filed a rule 58(1) – affidavit as third claimant
earlier dated 5 March 2024, wherein they applied for the Toyota Hilux
vehicle, which is the bone of contention, to be uplifted
from the
judicial attachment and for them to be placed in possession
thereof.
[1]
It was not opposed
by the applicant in
casu
.
In fact, on 26 February 2024 already, the following order was
obtained from Daniso J by Toyota Financial Services (plaintiff)
against RZT Zelpy 4185 (Pty) Ltd (1
st
defendant)
and Andre-Hendri Le Roux (2
nd
defendant/Mr
Le Roux):
IT
IS ORDERED THAT:
1.
The agreement is
Cancelled.
2
The 2021 TOYOTA
HILUX 2.8 GD-6 RB RAIDER A/T P/U D/C with ENGINE NUMBER: 1GD[…]
and CHASSIS NUMBER: AHT[…] vehicle must be delivered by the
Defendant to the Plaintiff, alternatively
that the sheriff should
take into possession the said vehicle from wherever and whoever's
possession it may be found and place the
Plaintiff in possession
thereof
.
3.
The Plaintiff is granted leave to approach the Honorable Court on the
same papers
supplemented by a damage affidavit after repossession and
sale of the vehicle to prove its damages.
4.
Costs of Action.
[2]
(Emphasis added)
[4]
It
is clear that the sheriff of the court was ordered to place the
vehicle in the possession of Toyota Financial Services
and
obvious that the applicant did not have any role to play from here.
The
request for delivery to the sheriff by Toyota Financial Services was
made on 1 March 2024.
[3]
The
urgent application by the applicant was filed on 5 March 2024.
[5]
The situation as reported in a return of service
might have set the scene for the consternation and the emotional
decisions that
followed and caused the whole dilemma. This is what
the deputy sheriff reported on a return of service dated 29 February
2024:
On
this 21
st
day
of February 2024 at 11:15 – 14:00 I attempted to remove the
moveable property under judicial attachment at 27A I A, W,
[4]
Bloemfontein as per your instructions.
I
was unable to remove assets due to the defendant
[5]
threatening us by stating that if we enter the premises, he is going
to shoot us with his gun.
A further attemt (sic)
was made the same day at @ 17:30 with the assistance of Bayswater
SAPS to remove the bakkie as new instructions.
The bakkie was not
found, the defendant’s daughter opened the garage and the
bakkie was not there.
Interpleader summons was
issued for appearance 17 May 2024.
Confirmation of your
removal instructions and Rule 45(3)(c)(i) Indemnity (sic) is awaited.
The
original return together with the original abovementioned process is
retained pending further instructions. (Emphasis added)
[6]
[6]
It is the case of the applicant that the sheriff
of this court as the second respondent, failed in her duties and must
pay the costs
for the urgent application. I will discuss the duties
of the sheriff on the facts of this case and the veracity of the
claim by
the applicant later. The nature of the proceedings plays a
role in the adjudication of the costs.
THE DISCONTINUED
PROCEEDINGS
[7]
It is a common place fact that on 11 March 2024
the second respondent delivered her answering affidavit and the
applicant, as result,
decided not to pursue the application in
respect of the main relief they wanted.
[8]
They did however demand a hearing of the issue of
costs. By agreement between the parties, and the agreement made an
order of court
on 13 March 2024; the matter was postponed for the
adjudication of said costs. Leave was granted for the filing by the
first and
second respondents of a supplementary answering affidavit
followed by the filing of a replying affidavit by the applicant.
[9]
The
applicant undoubtedly discontinued proceedings at the proverbial door
of the court on the main relief sought. The first and
second
respondent’s supplementary answering affidavit disproves and
invalidates any claim or possibility of a settlement
between the
parties on the main relief sought.
[7]
[10]
A
litigant responsible for abortive or discontinued proceedings will
generally be ordered to pay the costs of such proceedings.
It is
imperative to understand what the nature of the proceedings were that
did not proceed and what the rationale behind the situation
is. This
is what Cilliers
[8]
concluded
after research of the prevailing case law:
a.
A plaintiff or applicant who withdraws his or her
action or application is usually in the same position as an
unsuccessful litigant
because, after all, his or her claim or
application is (as a rule) futile and the defendant or respondent is
entitled to all costs
caused by the institution of proceedings by the
withdrawing party.
b.
In such a case it is not necessary to go into the
merits of the case.
c.
There is a crucial difference between the
position of an applicant settling his or her case on the merits and
then asking the court’s
ruling on costs, and the position of an
applicant withdrawing his or her claim and after that attempting to
avoid an order of costs
against him.
d.
The above notwithstanding; the court retains a
discretion on the award of costs.
e.
Ordinarily a party who withdraws or terminate an
application is as a rule considered as having conceded the merits
and, thus, is
obliged to make a tender of the costs. The respondent
may, nevertheless, have been complicit in causing the litigation and
may
be ordered to pay costs.
[11]
In
Wildlife and
Environment Society of South Africa v MEC for Economic Affairs,
Environment and Tourism, Eastern Cape Provincial Government
and
Others
(ECJ 046/2005)
[2005] ZAECHC 14
;
[2005] 3 All SA 389
(E);
2005 (6) SA 123
(E) (28 April 2005)
Pickering J investigated the principles to be applied as it developed
through the years in our courts. He noted
that:
a)
In
Germishuys v
Douglas Besproeiingsraad
1973 (3) SA
299
(NC) it was stated by Van Rhyn J at 300D–E that where a
litigant withdraws an action
or in
effect withdraws it
, sound reasons must
exist why a defendant or respondent should not be entitled to his
costs. The plaintiff or applicant who withdraws
his action or
application is in the same position as an unsuccessful litigant
because, after all, his claim or application is futile
and the
defendant, or respondent, is entitled to all costs associated with
the withdrawing plaintiff’s or applicant’s
institution of
proceedings. (Emphasis added)
b)
In
Reuben Rosenblum
Family Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd
(Forward Enterprises (Pty) Ltd and Others intervening)
2003 (3) SA 547
(C) at 550C–D Van Reenen J
ruled that it is only in exceptional circumstances that a party that
has been put to the expense
of opposing withdrawn proceedings will
not be entitled to all the costs caused thereby.
c)
In
Waste Products
Utilisation (Pty) Ltd v Wilkes and Another (Biccari Interested Party)
2003 (2) SA 590
(W) Lewis J stated at 597A that
where a party withdraws a claim the other is entitled to costs unless
there are good grounds for
depriving him.
d)
At 597F Lewis J referred also to the circumstances
of the case as being “special”.
e)
I support the proposition of Pickering J that
“exceptional” and “special” circumstances
referred to by Van
Reenen J and Lewis J may not be interpreted to be
a more stringent test than that referred to by Van Rhyn J.
f)
The governing test to be applied was aptly
declared in
Ward v Sulzer
1973 (3) SA 701
(A) by Holmes JA at 706G to be
that in awarding costs the court has a discretion, to be exercised
judicially upon a consideration
of all the facts; and, as between the
parties,
in essence it is a matter of
fairness to both sides
.
[12]
The enactment of the Constitution brought an
enhanced perspective to the principle to be applied. Access to
justice is crucial but
may not be abused. It is a privilege that must
be coveted for what it is.
In Sanderson
v Attorney-General, Eastern Cape
1998
(2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) reference was made at
paragraph 43 to
Motsepe v Commissioner
for Inland Revenue
[1997] ZACC 3
;
1997
(2) SA 898
(CC);
1997 (6) BCLR 692
(CC) where the following was
stated at paragraph 30:
…
one
should be cautious in awarding costs against litigants who seek to
enforce their constitutional right against the State, particularly
where the constitutionality of the statutory provision is attacked,
lest such orders have an unduly inhibiting or ‘chilling’
effect on other potential litigants in this category.
This
cautious approach cannot, however, be allowed to develop into an
inflexible rule so that litigants are induced into believing
that
they are free to challenge the constitutionality of statutory
provisions in this Court, no matter how spurious the grounds
for
doing so may be or how remote the possibility that this Court will
grant them access. This can neither be in the interests
of the
administration of justice nor fair to those who are forced to oppose
such attacks
.
(Emphasis added)
THE EVENTS
[13]
The chronology of the events and the rationale
behind the urgent application that was aborted are crucial to the
adjudication of
the case.
[14]
The
version of the applicant in their replying affidavit
[9]
dated 5 April 2024 is acknowledged but the facts are not as simple.
It ignores the core of the situation.
Toyota
Financial Services was dominis litis in the management of the
possession of the vehicle.
Ad
paragraphs 18 to 21
6.1.
…
6.2.
The urgency
of the
application stems from the fact that the first respondent's dilatory
conduct resulted in Mr le Roux being allowed to further
use his
vehicle despite the fact that the first respondent should have
removed it.
6.3.
The urgency was also
created by the First and Second Respondent in that the opportunity to
find and remove the asset was becoming
more unlikely as the Judgment
Debtor became aware of the First and Second Respondent's instructions
to remove the vehicle. The
likelihood that the Judgment Creditor was
to hide and move the vehicle to a different location was becoming
more and more likely
with every day the first two Respondents refused
to execute their duties.
6.4.
The applicant
required the Sheriff to act immediately given the time lapse since
the first instruction was given and the very real
possibility at the
time that the asset might not be found in future.
[15]
The
evidence filed shows that the first and second respondents did all in
their power to avoid litigation in a complicated situation
with
numerous factors to regard and demands to observe. The detail must be
depicted as it is to underscore the reality. This is
the core of the
factual and legal situation as appropriately depicted by the second
respondent in her answering affidavit:
[10]
The
crux of the first and second respondents' defence:
22.
As mentioned above, the applicant
applies for an order to compel me to attach, remove and keep
the
Toyota Hilux until the finalisation of interpleader proceedings or
such extended period as agreed between the parties.
23.
On 12 January 2024 my Deputy Sheriff,
Mr LM Nthinya (“Mr Nthinya”) served the writ
of execution
on Mr Le Roux, who is also the representative of RZT, at 27A I A, W,
Bloemfontein and attached various household items
as well as a Toyota
Yaris motor vehicle and the Toyota Hilux. Copies of the returns of
service, issued by Mr Nthinya, including
the inventory which he made
pursuant to the execution of the writ, are collectively annexed
hereto as annexure “AA2”.
I refer the Court to the
content of the return of service, specifically the remark which Mr
Nthinya made to the effect that the
writ of execution and notice of
attachment will be handed over to the Licencing Authorities in order
to establish the name of the
titleholders of the motor vehicles.
24.
On 12 January 2024, when the writ of execution was served, Mr Le
Roux's wife, Mrs Mariska
Le Roux (“Mrs Le Roux”)
submitted an affidavit to Mr Nthinya, claiming that she is the owner
of the household furniture.
She also indicated to him that she is the
owner of the Toyota Yaris vehicle.
25.
As a result, Mr Nthinya did not remove
the assets under attachment.
26.
My office established from the office of the Licencing Authority,
Bloemfontein that Toyota
Financial Services is registered as the
titleholder of the Toyota Hilux as envisaged in the National Road
Traffic Act, no. 93 of
1996 (“the Road Traffic Act”) and
that RZT is the registered owner thereof. It was also established
that Mrs Le Roux
is the registered titleholder and owner of the
Toyota Yaris.
27.
On 30 January 2024 Mr Pieter Strydom (“Mr Strydom”) of
Krone & Associates
instructed my office to proceed with an
interpleader regarding the movable assets attached in terms of the
writ of execution.
28.
On 2 February 2024 Mr
Strydom informed my office that because no claim has been made in
respect of the Toyota Hilux, the Toyota
Hilux should be removed. I,
however, informed Mr Strydom on 5 February 2024 that it appears from
the information received from
the Licencing Authority that Toyota
Financial Services is the titleholder of the vehicle and that I could
only proceed to remove
the Toyota Hilux if a “paid-up letter”
is received from Toyota Financial Services. A copy of the e-mail is
annexed
as annexure “FA7” to the founding papers.
29.
As explained by the applicant, since
20 February 2024 further correspondence were exchanged regarding
the
removal of the assets under attachment, including the Toyota Hilux. I
shall later deal with the content of the correspondence
and attempts
made to remove
inter alia
the Toyota Hilux.
30.
I pause to mention that although the
other movable assets were also not removed and Mrs Le Roux's
claim
regarding those assets has not been accepted by the applicant, the
applicant only insist that the Toyota Hilux be removed
and not the
other assets too.
31.
On 27 February 2024 I received an e-mail from Mrs Letsie, an employee
of Symington De Kok
Attorneys, Bloemfontein, in which she confirmed
that Symington De Kok acts on behalf of Toyota Financial Services,
that Toyota
Financial Services is the rightful owner of the Toyota
Hilux, that Toyota Financial Services does not consent to the sale of
the
Toyota Hilux, and that the outstanding amount on the account is
R739 406.75. I notified Mr Krone accordingly on 27 February 2024
and
confirmed the facts in the e-mail which I sent to Mr Krone and Mr
Strydom on 29 February 2024 (annexure “FA16”).
32.
On 28 February 2024 I also proceeded
to issue an interpleader notice in terms of rule 58(1).
A copy of the
interpleader is annexed as annexure “FA18” to the
founding papers.
33.
On 1 March 2024 I received an e-mail from Mr Krone, in terms of which
he,
inter alia
, confirmed that the applicant does indeed
recognise Toyota Financial Services' claim as titleholder of the
Toyota Hilux. A copy
of the e-mail is included in annexure “FA17”.
However, according to Mr Krone Toyota Financial Services will enjoy a
preferent claim, seemingly in respect of the proceeds of the Toyota
Hilux when it is sold in execution, and therefore again instructed
me
to remove the Toyota Hilux with immediate effect.
34.
In terms of the writ of execution, I
was directed to attach and remove the movable assets of
RZT and Mr Le
Roux.
35.
It should be uncontentious that,
having conceded and acknowledged on 1 March 2024 that Toyota
Financial Services is the titleholder
of the Toyota Hilux, Toyota
Financial Services’ rights in and to the ownership of the
Toyota Hilux was accepted by the applicant
and the applicant was not
anymore entitled to have the Toyota Hilux sold in execution under the
writ of execution. It also disposed
of the necessity to proceed with
the interpleader proceedings regarding the Toyota Hilux.
(Emphasis
added)
36.
It is also common cause that Toyota Financial Services did not
consent to the sale of the
Toyota Hilux.
37.
Consequently, I was not entitled to continue to remove and take the
Toyota Hilux into my
possession and under my control in terms of the
writ of execution. I informed the applicant's attorneys accordingly
on 1 March
2024 (annexure “FA17”).
38.
Nevertheless, on 5 March 2024, after admitting Toyota Financial
Services’ right as
titleholder of the Toyota Hilux, the
applicant proceeded to institute this application for an order
directing me to remove and
keep the Toyota Hilux until the
finalisation of the interpleader proceedings or such extended period
as agreed to between the parties.
39.
In view of the aforesaid facts, the relief is not legally tenable,
and the application clearly constitutes an abuse of process. The
applicant undoubtedly knows that it cannot insist on the execution of
the Toyota Hilux but still seeks the removal of the Toyota
Hilux
under the writ of execution.
(Emphasis added)
40.
On 5 March 2024, after the issuing of the application, I received
Toyota Financial Services'
affidavit in terms of rule 58(1) in
respect of the interpleader from Symington De Kok. A copy of
Symington De Kok’s letter
date 5 March 2024 is annexed hereto
as annexure “AA3” and a copy of the affidavit in terms of
rule 58(1), together
with the annexures thereto, is annexed hereto as
annexure “AA4”. I refer the Court to the content of the
affidavit
as well as the annexures thereto.
41.
In terms of annexure “A” to the affidavit, Toyota
Financial Services is the
registered titleholder of the Toyota Hilux.
In addition, it is clear from the provisions of annexure “B”
to the affidavit,
namely the instalment sale agreement concluded
between Toyota Financial Services and RZT, that Toyota Financial
Services remained
the legal owner and titleholder of the Toyota Hilux
until payment of the full purchase price under the instalment sale
agreement.
The full purchase price has not yet been paid by RZT. It
is still indebted to Toyota Financial Services in the amount of R736
982.51.
42.
On 5 March 2024 I also received a warrant for delivery from Symington
De Kok, issued under
case number 4607/2023, being an action
instituted by Toyota Financial Services against RZT and Mr Le Roux. A
copy of the warrant
for delivery is annexed hereto as annexure “AA5”.
In terms of the warrant for delivery, it is recorded that the Court
ordered that the defendant should deliver to Toyota Financial
Services the 2021 Toyota Hilux motor vehicle described in the warrant
for delivery, being the Toyota Hilux. In terms of the warrant for
delivery I, as Sheriff, am authorised and required to attach
and
remove the Toyota Hilux and place Toyota Financial Services in
possession thereof.
43.
My attorney has also
obtained a copy of the order granted on 26 February 2024 in favour of
Toyota Financial Services, a copy of
which is annexed hereto as
annexure “AA6”.
44.
On 7 March 2024 my attorney, Mr HJ Stander (“Mr Stander”)
of Stander & Associates,
addressed a letter to Mr Krone,
providing him with a copy of the warrant of delivery as well as the
affidavit received by Toyota
Financial Services in respect of the
interpleader. A copy of Mr Stander's letter dated 7 March 2024 is
annexed hereto as annexure
a “AA7”. I do not annex copies
of the annexures to the letter as they are already annexed hereto.
45.
Consequently, Mr Stander enquired from Mr Krone whether the applicant
still intends to proceed
to move for the relief as sought on an
urgent basis. Mr Strydom responded to the letter on 8 March 2024. A
copy of his letter is
annexed hereto as annexure “AA8”.
In terms of this letter, the applicant still insisted that I should
execute my duties
as an officer of this Court, clearly meaning that I
should still proceed to remove the Toyota Hilux in terms of the
attachment
made under the writ of execution.
46.
Later that day, Mr Stander received a further letter from Mr Strydom,
a copy of which is
annexed hereto as annexure “AA9”. In
terms of this letter, the applicant indicated that should the vehicle
be removed
on or before close of business on 12 March 2024, the
application would be removed from the urgent roll. It is evident from
the
content of the letter that the applicant still persist that the
Toyota Hilux should be removed in terms of the attachment made under
the writ of execution.
47.
Since receipt of the warrant for delivery, my Deputy Sheriff, Mr W
Holtzhausen attempted
on numerous occasions to remove the Toyota
Hilux. A copy of the return of service, issued on 11 March 2024 by Mr
Holtzhausen, in
which the attempts to remove the Toyota Hilux are
confirmed, is annexed hereto as annexure “AA10”.
48.
On 8 March 2024 Mr Roodt, my husband and one of my duly appointed
deputy sheriffs, attempted
to remove the Toyota Hilux. He contacted
Mr Le Roux to make the necessary arrangements. Mr Le Roux however
referred him to his
attorney, Mr Charles Virtue (“Mr Virtue”)
of Virtue Attorneys. Mr Roodt informed about the discussion,
following which
I had a telephonic (sic) with Mr Virtue. Pursuant to
our discussion, I received a letter from Mr Virtue on 9 March 2024
confirming
that Mr Le Roux is at present in Cape Town with the Toyota
Hilux and will return to Bloemfontein on Wednesday, 13 March 2024. An
undertaking was given that Mr Le Roux will surrender the Toyota Hilux
to my office upon his return to Bloemfontein. A copy of Mr
Virtue's
letter is annexed hereto as annexure “AA11”. The
undertaking was given in respect of Toyota Financial Services’
warrant of delivery.
49.
On 9 March 2024 my attorney provided Mr Krone with a copy of Mr
Virtue's letter and again
enquired whether the applicant persists in
proceeding with the urgent application. A copy of Mr Stander's letter
dated 9 March
2024 is annexed hereto as annexure “AA12”.
50.
Mr Stander has not yet received a
response from Mr Krone.
51.
On 21 February 2024 Mr Krone recorded in an e-mail (annexure "FA10"),
that the
applicant has no intention to proceed with the sale of the
Toyota Hilux without Toyota Financial Services’ consent.
Despite
the fact that I informed Mr Krone on 29 February 2024 that
Toyota Financial Services does not consent to the sale of the vehicle
which was also confirmed in terms of the documents annexed to the
interpleader notice, the applicant still seeks the removal of
the
Toyota Hilux.
52.
It needs to be emphasized that I was never instructed to attach or
remove the Toyota Hilux
for purposes of selling RZT's right to
possession and use of the Toyota Hilux in terms of the provisions of
the instalment sale
agreement. In any event, having regard to the
order granted in favour of Toyota Financial Services for the delivery
of the Toyota
Hilux, RZT does not have such right anymore.
53.
The applicant is not entitled to have the Toyota Hilux sold in
execution under the writ
of execution in circumstances where the true
ownership of the Toyota Hilux does not vest in RZT but in Toyota
Financial Services.
A judgment creditor is not entitled to have
assets of which the judgment debtor is not the owner, attached and
sold in terms of
writ of execution without the consent of the owner
of such asset. Toyota Financial Services did not consent to the sale
of the
Toyota Hilux.
54.
In terms of the warrant for delivery, and the order granted in favour
of Toyota Financial
Services, Toyota Financial Services is entitled
to the delivery and possession of the Toyota Hilux, being in its
capacity as the
true owner of the Toyota Hilux.
THE DUTY OF THE
SHERIFF
[16]
By definition, a sheriff is an officer of the
court appointed by the Minister of Justice and Constitutional
Development in terms
of the Sheriffs Act 90 of 1986.
[17]
The sheriff has a crucial role to play in the
administration of justice. Fundamental is the fact that the sheriff
is not a lackey
that blindly enforces court orders. The sheriff is
not a pawn to be used in litigatory power games played by parties.
The sheriff
must enforce the law in terms of the rule of law and
strife for constitutional equity and justice.
[18]
Counsel for the applicant aptly referred to the
quote from the case of
ABSA Bank
Limited v Van Eeden and Others
2011 (4)
SA 430
(GSJ), [2011] ZAGPJHC 19; 49918/2009 (22 March 2011):
[32]
Quoniam fiscalis hastae fides facile convelli non debeat
may
be translated as “by reason of the fact that public confidence
in the institutional weapon of execution should not lightly
be
disturbed” (my translation). This expression, it seems to me,
summarizes the critical point: public confidence in the
process of
execution is fundamentally important. In the circumstances of this
case, it seems clear that public confidence will
be better served by
an intervention in the sale of execution than by its declining to do
so. It is not simply the buyers who must
have confidence in the
process of sales in execution but all interested parties, indeed the
general public as a whole.
[19]
The case of
Interactive
Trading 115 CC and Another v South African Securitisation Programme
and Others
(2119/2017) [2019] ZALMPPHC
10;
2019 (5) SA 174
(LP) (29 March 2019) referred to by the applicant
in their heads of argument does not find application in this case.
The sheriff
in the instance did nothing of the kind; the facts show
the opposite. If the applicant is still dissatisfied with the service
that
was rendered by the sheriff, they can submit a complaint to the
South African Board for Sheriffs in terms of section 44 of the
Sheriffs Act 90 of 1986. I suspect the events have overtaken this
application and any further steps might be theoretic.
[20]
The facts show that all the parties had a role to
play in this case to contribute to the effective administration of
justice; the
applicant included. Counsel for the first and second
respondents, in their heads of argument, pointed out that the
applicant did
not follow the correct procedure. He is correct. This
is what he stated:
40.
I submit that the respondents have
never ignored the obligations imposed upon a sheriff of this
Court.
41.
After attaching the Toyota Hilux and Toyota Yaris, the respondents
immediately took the
necessary steps to establish the details of the
title holders. The respondents’ deputy sheriff also attempted
to remove the
Toyota Hilux on 21 February 2024 but was threatened by
Mr Le Roux.
42.
To the extent that the applicant sought interdictory relief, the
applicant also did not
meet the requirements for the granting of such
relief. Having accepted TFS’ rights as title holder and having
regard to the
outstanding debt owing to TFS in respect of the Toyota
Hilux, the applicant did not demonstrate that it would suffer
irreparable
harm if the order was not granted or that the balance of
convenience favored the granting of the main relief.
43.
Without conceding that the respondents' conduct was irregular or
contrary to a sheriff’s
duties, the applicant also had an
alternative remedy, namely the remedy envisaged in
section 43
of the
Superior Courts Act, no. 10 of 2013
.
Section 43(4)
provides that “
A
refusal by the sheriff or a deputy to do any act which he or she is
required to do, is subject to review by the court concerned
on
application ex parte or on notice as the circumstances may require.”
44.
The applicant therefore also did not follow the correct procedure.
[21]
The
significance of the execution of court orders cannot be denied. The
conduct of Le Roux that sabotaged the administration of
justice,
caused confusion and instigated the litigation; is unacceptable. De
Vos
[11]
emphasised the
execution of court orders when he wrote that:
As former Chief Justice
Sandile Ngcobo pointed out in a public lecture, the judiciary needs
to retain the public’s confidence
in order for it to fulfil its
role properly. Public confidence was important, suggested Ngcobo CJ,
because it is necessary for
the effective performance of judicial
functions.
What was required was for members of the public to
recognise the legitimacy of individual decisions of the court
even when it disagreed with the outcome of such decisions
: in
other words, public opinion related to the institutional position of
a court and hence courts had to act in such a manner that
it retained
the confidence – if not always full agreement – of the
public it served.
…
If
members of the public come to believe that what matters is not what a
specific legal principle requires, but what those with
money and
power dictate, lawlessness in its most extreme form logically
follows.
(Emphasis
added)
To quote former Chief
Justice Ishmael Mahommed, “[u]nlike Parliament or the
executive, the court does not have the power of
the purse or the army
or the police to execute its will. The superior courts and the
Constitutional Court do not have a single
soldier. They would be
impotent to protect the Constitution if the agencies of the state
which control the mighty physical and
financial resources of the
state refused to command those resources to enforce the orders of the
courts. The courts could be reduced
to paper tigers with a ferocious
capacity to roar and to snarl but no teeth to bite and no sinews to
execute what may then become
a piece of sterile scholarship.”
CONCLUSION
[22]
The applicant has no right to claim costs here. It
will be just and fair that the applicant be ordered to pay the costs
in the circumstances.
I considered a punitive costs order but it was
not the request of the first and second respondents; graciously so.
a.
It was from the onset explained to the applicant
and repeatedly and correctly so that they are not entitled to the
relief sought.
The matter could have been resolved earlier and the
first and second respondents may never be allowed to be forced by any
form
of litigation to act irresponsibly and outside the parameters of
the law.
b.
Counsel for the first and second respondents is
correct when he submitted in their heads of argument that “the
applicant was
aware or should at least have been advised that the
Toyota Hilux could not be sold in execution. The applicant’s
insistence
on the Toyota Hilux’s removal seems driven by hidden
agendas. This is evident as it did not push for the removal of the
other
assets or the Toyota Yaris pending the finalisation of the
interpleader proceedings.”
c.
The first and second respondents diligently tended
to their tasks as sheriffs of the court. They did not rush recklessly
into compliance
to the demands of the applicant that might have had
dire legal consequences. In paragraphs 9 to 24 of the supplementary
affidavit
of the first and second respondents dated 20 March 2024 the
sheriff again explained in detail why and how the events unfolded and
the impossibility of compliance to the demands of the applicant that
were not legally theirs to make. It shows that the conduct
of the
applicant borders on an abuse of section 34 of the Constitution of
the Republic of South Africa.
d.
The
one that refused and obstructed the surrender of the asset and went
on a trip to Cape Town diminishing the value of the asset
and causing
the apprehension with the applicant, was not joined. This was the
cause for the knee-jerk reaction of the applicant.
Reading of the
law
[12]
unequivocally directs
that RZT and Mr Le Roux had to be joined in the costs hearing and the
litigation in the first instance.
e.
The litigation embarked upon by the applicant
could have been prevented if only they applied mature diligent
awareness of the real
and the true situation in fact and law. The
applicant must take responsibility for the costs in the least in the
manner requested
by the first and second respondents.
[23]
ORDER
It is
ordered that the applicant shall pay the costs of the application,
including counsel’s fees, on scale B. The costs to
include the
costs incurred for the postponement of 13 March 2024.
[13]
M OPPERMAN J
Appearances
For
applicant:
M.C.
Louw
Instructed
by:
Krone
& Associates Attorneys
Pretoria
c/o
Honey Attorneys
Bloemfontein
For
first & second respondents:
C.D.
Pienaar
Instructed
by:
Stander
& Associates Attorneys
Bloemfontein
[1]
Pages
128 to 142 & 166 to 182 of the court bundle (the “bundle”)
indexed 5 April 2024. All references to page
numbers shall be to
that of the bundle except if otherwise indicated.
[2]
Pages
145 to 146.
[3]
See
pages 143 and 144.
[4]
Address
concealed to protect the privacy of the party.
[5]
Mr
Le Roux was the defendant referred to.
[6]
Page
156. The document is also marked “AA13”.
[7]
Pages
185 to 204.
[8]
Cilliers
AC,
Law
of Costs
,
Civil Procedure. Last Updated: March 2024 - SI 49 at Chapter 8.
LexisNexis accessed on 8 July 2024.
“
8.17A
Discontinuance of
proceedings
In South African law
discontinuance of proceedings would generally encompass abandonment
or withdrawal. In English law the word
“discontinuance”
is often used in this context. In the case of a compromise, it could
also be said that proceedings
have been discontinued. However, the
court has a discretion to make no order as to costs. See Re Walker
Windsail Systems Ltd;
Walker v Walker
[2006] 1 All ER 272
(no
reason, in the circumstances, to depart from the general rule).”
[9]
Page
210.
[10]
Pages
104 to 111.
[11]
De
Vos P
,
Flouting a court order: Government risks making a paper tiger of the
law
,
15 June 2015,
https://www.dailymaverick.co.za/opinionista/2015-06-15-flouting-a-court-order-government-risks-making-a-paper-tiger-of-the-law/
accessed on 9 July 2024.
[12]
Snyders
and Others v De Jager (Joinder)
(CCT186/15)
[2016] ZACC 54
;
2017 (5) BCLR 604
(CC) (21 December 2016) at
paragraph 9.
“
[9]
A person has a direct and substantial interest in an order that is
sought in proceedings if the order would directly affect
such a
person’s rights or interest. In that case the person should be
joined in the proceedings. If the person is not joined
in
circumstances in which his or her rights or interests will be
prejudicially affected by the ultimate judgment that may result
from
the proceedings, then that will mean that a judgment affecting that
person’s rights or interests has been given without
affording
that person an opportunity to be heard. That goes against one of the
most fundamental principles of our legal system.
That is that, as a
general rule, no court may make an order against anyone without
giving that person the opportunity to be heard.”
[13]
See
p
age
15 of the heads of argument for the first and second respondents.