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[2024] ZAKZPHC 91
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Transasia 1 (Pty) Ltd v Sherif of the High Court and Others (Leave to Appeal) (10895/2024P) [2024] ZAKZPHC 91 (22 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
10895/2024P
In the matter between:
TRANSASIA 1 (PTY)
LTD
APPLICANT
AND
THE SHERIF OF THE HIGH
COURT, DUNDEE
FIRST RESPONDENT
CATERPILLAR FINANCIAL
SERVICES
SOUTH AFRICA (PTY)
LTD
SECOND RESPONDENT
MAHLANGUMGABADENI
TRADING ENTERPRISE CC THIRD
RESPONDENT
PHEZUKOMKHONO
COMMUNITY
PROPERTY ASSOCIATION
FOURTH RESPONDENT
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
P
C BEZUIDENHOUT J
:
[1]
Applicant is seeking leave to appeal against my judgment dismissing
its application with costs.
[2]
It was common causes that there was an order from the high court
Mpumalanga for the Sheriff to
take possession of a certain
caterpillar where it may be found.
[3]
Entry to certain premises where the said caterpillar was found was
refused where after the Sheriff
with the assistance of a locksmith
had locks opened etc. to gain entry.
[4]
It is submitted that I failed to consider the fundamental rights in
section 36(1) of the Constitution
by finding that there were limits
to freedom when there was a court order that the Sheriff had to
comply with.
[5]
That the Respondents did not make out a case that applicant’s
fundamental rights were limited.
First Respondent had no right
in terms of the court order to enter and search Applicant’s
property and no right to detain
the services of a locksmith to attach
and remove the caterpillar. The premises were not that of a
party to the proceedings.
[6]
The party who alleges there was a limitation had to raise it.
There was no facts in this
regard on the papers. The limitations
could not be justified on the papers.
[7]
Another court, based on the absence of facts justifying the
limitation, could find it was not
justified. The wording of the
order is what is normally used and because of the importance thereof
leave should be granted
to the Supreme Court of Appeal. The
right to privacy and access to court were affected.
[8]
I was referred to the judgment of Coetzee v Government of the
Republic of South Africa
1996 (4) SA 631
(CC) which dealt with the
sections of the Magistrates Court Act to imprison a debtor. At
paragraph 9 it held it had to be
decided whether the legislation
limits the rights in section 3 of the Constitution and if so if the
limitation is justified in
terms of section 33(1) of the
Constitution. (Now section 36)
[9]
I was also referred to Phillips and Another v Director of Public
Prosecutions Witwatersrand Local
Division and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC).
[10] It
was submitted by Second Respondent that the starting point was that
it was not unlawful as there was a
court order. The sheriff
acted in terms of this court order. If Constitutional issues
were raised, notice had to be
given in terms of Rule 16 which was not
done. The order of Langa J ordered the Sheriff to take the
caterpillar where it was
found. If the Sheriff did not do so he
could have been in contempt of court. This Court was correct in
finding the
Sheriff was obliged to execute the order. No one
took the law into their own hands and therefore there was no unlawful
conduct.
[11]
Although in its founding affidavit Applicant mentioned that
Transasia’s fundamental rights including
but not limited to
privacy and access to court were breached no factual basis therefore
was set out. There is therefore no
compelling reasons for
granting leave to appeal in terms of sections 17(1)(a)(ii) of the
Superior Court’s Act.
[12] I
was referred to the decision of Ex Parte Kaefer Insulation (Pty)
Ltd: In re Kaefer Insulation (Pty)
Ltd v Shameck
1984 (3) SA
533
(W) where the court refused an order authorising forced entry
holding that the Sheriff already had such powers by implication.
[13]
First Respondent submitted that there was a valid court order, that
it was thus justified to act in terms
thereof. There was no
spoliation because the actions taken were justified in terms of the
court order. The Sheriff
accordingly acted in a reasonable
manner in executing the court order.
[14] I
have considered the grounds of appeal, the submissions on behalf of
Applicant, First and Second Respondent
and the heads of argument
submitted. The facts in the cases of Coetzee and Phillips are
distinguishable as they deal with
legislation and not a valid court
order.
[15]
The test to be applied is whether there would be reasonable prospects
on appeal is set out in Caracto (Pty)
Ltd v Independent Advisory
(Pty)
2020 (5) SA 35
(SCA) Smith v S
2012 (1) SACR 567
(SCA).
[16]
There must be a reasonable chance of succeeding. Put
differently can a court of appeal reasonably arrive
at a different
conclusion. Ramakala & others v African National Congress
and Another (2021) ZSCA 31.
[17] I
have also considered the provisions of section 36 of the Constitution
in terms of which rights in the Bill
of rights may be limited.
The court order did not set out where the caterpillar may be taken
from. It is not disputed
that it was found on the said
property. The wording of the order was accepted by all the
parties was in the normal form.
I set out in detail in my
judgment the reasons I found allowed the Sheriff to enter the
premises and remove the caterpillar.
[18] A
court order which is valid and which authorises the Sheriff to attach
and remove something where found
must be complied with by the
Sheriff. If not court orders will be disobeyed. Further
having such an order the Sheriff
cannot be so required to bring an
application to the High court to enter certain premises where the
article is. The order
is phrased widely to allow the Sheriff to
take the property where it may be. If not the effectiveness of
court orders would
be severely compromised.
[19]
Although I did not specifically refer to section 36 of the
Constitution in my judgment the reasons for my
conclusion that there
was a limitation appears from the judgment.
[20] I
am also not convinced that a constitutional issue arises because the
order was not granted against Applicant.
The order is clear
that it be taken from where it may be found. Considering the
facts of the present case how the caterpillar
had been moved etc. it
is indicative that it is not possible to always know where it may be.
[21] I
am accordingly of the view that there is no reasonable prospect that
another court could come to a different
conclusion.
[22]
The application for leave to appeal is dismissed with costs.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
17
OCTOBER 2024
JUDGMENT
HANDED DOWN:
22
OCTOBER 2024
COUNSEL
FOR APPLICANT:
MR.
B C STOOP SC
Instructed
by:
TTS
Attorneys Inc
Johannesburg
Ref:
Mr T Sibuyi
Tel:
078 213 4745
Email:
t.sibuyi@attsattorneys.co.za
c/o:
Viv Greene Attorneys
Pietermaritzburg
COUNSEL
FOR FIRST RESPONDENT:
MR.
R MANIKLALL
Instructed
by:
Ravindra
Maniklall & Company Inc
Umhlanga
Ridge
Ref:
Mr Maniklall
Tel:
032 5337488
Email:
rmcattorneys@gmail.com
COUNSEL
FOR SECOND RESPONDENT:
MR
P G LOUW
Instructed
by:
Werksmans
Attorneys
Sandton
Ref:
Ms E De Doncker/Ms Z Oosthuizen/ CATE41156.120
Tel:
011 535 8176
Email:
zoosthuizen@werksmans.com
c/o:
Garlicke & Bousfield Inc
Durban
c/o:
Botha and Olivier Attorneys
Pietermaritzburg
Tel:
033 342 7190
Email:
LEGAL@BANDO.CO.ZA