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[2010] ZALCCT 1
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Zeman v Quickelberge and Another (C45/2010) [2010] ZALCCT 1 (29 November 2010)
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IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C45/2010
In
the matter between:
BERNADETTE ZEMAN
Applicant
And
ANTHONY CHARLES
QUICKELBERGE
First
Respondent
THE
RAILWAY SHED CC
Second
Respondent
JUDGMENT
STEENKAMP
J:
INTRODUCTION
1.
The
issue that arises in this application is whether leave may be granted
to execute against the judgment debtor’s
immoveable
property.
[1]
PARTIES
2.
The Applicant is Bernadette Zeman
(“
Zeman
”),
the judgment creditor. Her claim arises from a judgment in this court
of 23 August 2010, ordering the First Respondent
to pay her the sum
of R39 000 (plus interest).
3.
The First Respondent and judgment debtor is
Anthony Charles Quickelberge (“
Quickelberge”
).
Quickelberge resides at [……].
4.
The Second Respondent is The Railway Shed
CC (“
The Railway Shed CC”
).
The Railway Shed CC is the owner of Soprano’s Restaurant, a
restaurant in the Robertson district of the Western Cape where
Zeman
worked.
BRIEF
BACKGROUND AND CONTEXT
5.
This is an
ex
parte
application for the attachment by
Zeman of immoveable property belonging to Quickelberge.
6.
Because
of a judgement by the Constitutional Court
[2]
,
the attachment of immoveable property must, under certain
circumstances, be subject to judicial scrutiny before a writ in this
regard can be issued.
7.
Mr
Ackermann,
who appears
pro bono
for the applicant, argued that, while judicial scrutiny is required
in this case, the criteria for attachment of immoveable property
have
been satisfied.
THE
FACTS
8.
On
23 August 2010 this court passed judgment in favour of Zeman,
awarding an amount of R39 000 plus interest at 15.5% plus costs
on an
attorney client scale.
[3]
9.
On 9 September 2010 a writ of execution
against the moveable property of Quickelberge was issued by the
Registrar. The writ was
served at the address 288 Blouberg Rd,
Tableview. A person living there informed the Sheriff of Cape Town
that Quickelberge no
longer lived at the address.
10.
After considerable effort and further
wasted costs and delays, Quickelberge was tracked down to an address
in Montagu where the
writ was served on him and a
nulla
bona
return was obtained.
11.
The Applicant now stands bare unless she
can proceed against the immoveable property owned by Quickelberge.
THE
LAW
12.
Every
person has the right of access to
adequate
housing.
[4]
13.
The context within which the Constitutional
Court’s decision relating to the attachment of immoveable
property took place,
was Section 66(1)(a) of the Magistrate’s
Court Act.
14.
Section 66(1)(a) of that Act provides that
any judgment or order handed down by a court “
shall
be enforceable against the movable property and, if there is not
found sufficient movable property to satisfy the judgment
or order,
or the court, on good cause shown, so orders, then against the
immovable property of the party against whom such judgment
has been
given or such order has been made.”
15.
The corresponding rule in the High Court is
Rule 45(1) which provides:
“
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 …Provided that, except where
immovable property has been specially 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 perceives therefrom that the said person has not
sufficient movable property to satisfy the
writ.’
16.
Section 26 of the rules of this Court state
that execution of decisions of this court must take place in
accordance with the procedures
pertaining to the execution of
decisions in the High Court of South Africa. Rules 45 (1) and 31(5)
therefore apply to this matter.
17.
In
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[5]
the Constitutional Court dealt with the constitutional challenge to
section 66(1)(a) of the Magistrates’ Courts Act, and
found the
section to be unconstitutional.
18.
The facts briefly were that the appellants
had had their houses attached and sold in execution by the
respondents. They appealed
from the High Court to the Constitutional
Court to set aside the sales in execution because,
inter
alia,
section 66(1)(a) of the
Magistrates’ Courts Act was unconstitutional.
19.
The
Constitutional Court found that that there would be circumstances
where it would be unjustifiable to order execution against
immoveable
property because the
advantage
that attached to a creditor who sought execution would be far
outweighed by the immense prejudice and hardship caused
to the
debtor.
[6]
20.
To
remedy the constitutional defects of section 66(1)
(a)
of the
Magistrates' Courts Act the words “
a
court, after consideration of all relevant circumstances, may order
execution” must appear before the words “against
the
immovable property of the party”
.
[7]
21.
The
facts of
Jaftha’s
case, said the Constitutional Court, demonstrated the potential of
the section 66(1)
(a)
process
to be abused by unscrupulous people who took advantage of the lack of
knowledge and information of debtors similarly situated
to the
appellants. Execution in these circumstances would also be
unjustifiable. The section was sufficiently broad to allow sales
in
execution to take place in circumstances where it would not be
justifiable for them to be permitted.
[8]
22.
It was clear however that the Court realised
that whether execution was permissible would depend on the facts, and
it provided the
following guidelines, including, but not limited to:
22.1.
th
e circumstances in which the debt was
incurred;
22.2.
any attempts made by the debtor to pay off the debt;
22.3.
the financial situation of the parties;
22.4.
the amount of the debt;
22.5.
whether the debtor is employed or has a source of income to pay
off the debt; and
22.6.
any
other factor relevant to the particular facts of the case before the
court.
[9]
23.
In
Nedbank
Ltd v Mortinson
[10]
the
constitutionality of Rule 45(1) – the equivalent High Court
Rule - was subsequently challenged on the same grounds as
section
66(1)(a) of the Magistrates’ Courts Act.
24.
In terms of Rule 45(1), the Registrar of
the High Court is entitled, without any judicial intervention, to
issue a writ over the
judgment debtor’s immovable property
where there are insufficient movable assets to satisfy the judgment
debt.
25.
A
full bench of the High Court, following
Jaftha
,
held that Rule 45(1), insofar as it permitted execution against
immovable property without judicial sanction, was
unconstitutional.
[11]
Again,
the Court held that the section could be remedied by the insertion of
words “
and
a court, after consideration of all relevant circumstances, has
authorised execution against the immovable property”
after the words “
movable
property”
in the third last line of the Rule
[12]
.
26.
It was clear therefore that debts could no
longer simply be satisfied by the attachment of immoveable property
and that there were
certain circumstances which would require
judicial scrutiny.
Is
judicial scrutiny required where the judgment creditor has a bond
over the immoveable property?
27.
This
was the question facing the Supreme Court of Appeal in
Standard
Bank of South Africa Ltd v Saunderson and Others.
[13]
28.
It is dealt with here briefly to
distinguish between two types of debt: a debt extraneous to the
property, and a debt linked to
the property, like a bond. This
distinction is relevant but not central to the current matter before
me.
29.
In the court
a
quo
the debtors did not respond to the
summons issued by Standard Bank for the outstanding amount owed on
the bond, but despite this
the court, influenced by
Jaftha
,
declined the orders declaring the immovable property executable.
30.
On
appeal, the Supreme Court of Appeal overturned this decision. The
Court
a
quo
,
according to the SCA, had misinterpreted the
Jaftha
decision. Section 26(1) of the Constitution did not confer an
unqualified right of access to housing but only a right of
access to
“adequate” housing. Hence the
Jaftha
decision did not decide that all residential property was protected
by the provisions of Section 26(1).
[14]
The SCA pointed out that the situation in the matter before them was
very different from that in
Jaftha
because in
Jaftha
:
“
...the
sale in execution deprived the debtor of title to the home a state
subsidy enabled her to acquire because she was unable
to pay a
relatively trifling extraneous debt, and no judicial oversight was
interposed to preclude an unjustifiably disproportionate
outcome.
The judgment creditor in
Jaftha
was
not a mortgagee with rights over the property owners here have
willingly bonded their property to the bank to obtain capital.
Their
debt is not extraneous, but is fused into the title to the
property.”
[15]
APPLICATION
OF THE LAW TO THE FACTS
31.
The present case is also, as Mr
Ackermann
submitted, clearly distinguishable from
Jaftha’s
case.
32.
If I were to follow the reasoning of the
SCA in the
Standard Bank
case Quickelberge’s debt is extraneous, and therefore judicial
scrutiny is required. That is the purpose of this application.
33.
However, and this is the nub of the
applicant’s argument, the central question before me is
whether, in the words of Cameron
JA et Nugent JA in the
Standard
Bank
case, there would be an
“
unjustifiably disproportionate
outcome”
should attachment
proceed against Quickelberge. This question can be answered by using
the guidelines set out by the Constitutional
Court in the
Jaftha
case.
Circumstances in
which the debt was incurred
33.1.
The debt was incurred because of a court order and a writ
issued out of this court after a long and arduous struggle by the
judgment
creditor as a result of the evasive behaviour of the
judgment debtor.
Any attempts made
by the debtor to pay off the debt
33.2.
As
has already been fully canvassed in the previous application before
this court
[16]
, and in the
founding affidavit to this application, not only have no attempts
been made to pay off the debt by the debtor, but
he has taken active
steps to avoid paying the debt.
The financial
situation of the parties
33.3.
The judgment creditor works as a restaurant manager when and
where she can find work; the judgment debtor is by contrast a wealthy
man and a prominent businessman in Robertson who can afford to pay
what for him is a trifling amount.
The amount of the
debt
33.4.
The amount of the debt is R39 000 plus interest at 15.5%. As
the pleadings of record show, the judgment debtor has assets
conservatively
estimated at R20m (twenty million rand).
Whether the debtor
is employed or has a source of income to pay off the debt
33.5.
It is clear that the debtor has the assets and/or income to
pay the debt, and is simply being bloody-minded and obstinate in
refusing
to do so.
CONCLUSION
34.
Zeman has the right to execute against the
immoveable property of Quickelberge.
35.
The
conduct of the First Respondent in avoiding his obligations to the
Applicant and evading the consequences of a previous order
of this
court warrants a punitive costs order. I have explained in my
judgment of 23 August 2010 involving the same parties
[17]
why a costs order can be granted to an applicant who is represented
pro
bono
in
certain circumstances.
ORDER
36.
The Applicant is granted leave to execute
against the immoveable property of the First Respondent.
37.
The First Respondent is ordered to pay the
Applicant’s costs on an attorney and client scale.
__________________________________
STEENKAMP
J
Date
of hearing: 26 November
2010
Date
of judgment: 29 November 2010
For
the applicant: LW Ackermann
Instructed
by: Edward
Nathan Sonnenbergs
[1]
The application was heard
ex
parte.
I am indebted to the applicant’s attorney, Lourens Ackermann,
who appeared
pro
bono
,
for his extensive and well-researched heads of argument. I have
drawn heavily on his heads of argument in preparing this judgment.
[2]
Jaftha
v Schoeman & others; Van Rooyen v Stoltz & others
2005
(2) SA 140 (CC)
[3]
[2010] ZALC 122
paras [78.3] and [78.4]
[4]
Section
26 of the Constitution of the Republic of South Africa, 1996.
[5]
2005 (2) SA 140 (CC)
[6]
at
para [43](
own
emphasis
).
[7]
Jaftha
at
para [67]
[8]
Para [44]
[9]
Para [60]
[10]
[2005] ZAGPHC 85
;
2005
(6) SA 462
(W)
[11]
at
para [38] of the
Nedbank
case.
[12]
Para [39]
[13]
2006
(2) SA 264 (SCA).
[14]
at
para [15] of the
Standard
Bank
case.
[15]
Para [18] at 274 D-F
[16]
[2010] ZALC 122
[17]
[2010] ZALC 122