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[2018] ZALCCT 23
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Levine v Wienand and Others (C362/2018) [2018] ZALCCT 23 (29 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C362/2018
In
the matter between
WAYNE
HARRY
LEVINE
Applicant
and
ALBERT
WIENAND
First
Respondent
THE
SHERIFF FOR THE DISTRICT
OF
MALMESBURY
Second
Respondent
FIRSTRAND
BANK
LIMITED
Third
Respondent
Heard:
18 May 2018 and 22 June 2018
Delivered:
29 June 2018
JUDGMENT
RABKIN-NAICKER
J
[1]
On May 2 2018, the Applicant approached this Court on an ex parte
basis and obtained the following order from La-Grange J:
“
1. A
rule
nisi
is hereby issued returnable on 18
th
May 2018, calling upon the respondents to show cause why an order
should not be granted in the following terms, pending the outcome
of
an action to be instituted by the applicant against the second
respondent for the repayment of the amount of R183 233.
29:
1.1 that the second
respondent be interdicted from paying any monies to the first
respondent;
1.2 that the second
respondent be ordered to pay the costs of this application on the
attorney and client scale;
2. That the relief set
out in paragraph 1.1 above operates as an interim interdict with
immediate effect;
3. Directing the
applicant to institute an action against the second respondent for
the repayment of the amount of R183 233,
29 within twenty days
from the date of confirmation of the rule nisi;
4. Postponing the
question of costs to the return date of this application;…”
[2]
On the 18
th
May 2018, I extended the rule until 22
nd
June 2018 and gave leave to the first respondent to file an answering
affidavit on or before 25 May 2018 and the applicant a reply
on or
before 8 June 2018. Costs were to stand over. What this Court must
decide is whether the rule nisi stands to be confirmed
or discharged.
[3]
The first respondent (Wienand) obtained an arbitration award dated 21
February 2018, in which it was ordered that Osmosis Group
(Pty) Ltd
pay him back pay and compensation in the amount of R181,620.99. The
applicant acknowledges that this is a binding award
in his papers.
[4]
In his founding affidavit the applicant set out the summary of the
relief sought as follows:
“
This is an urgent
application to interdict the sheriff from paying the amount of R181
620, 99 plus interest at the prescribed legal
rate from 16 March 2018
to Wienand, pending the outcome of an action to be instituted by me
against the sheriff and Wienand, in
which I seek an order that the
payment I made in my personal capacity in the amount of 183 233,29
to the sheriff on 30 April
2018 be paid back to me on the grounds
that I made the payment under duress from the sheriff.
This application is
brought on an ex parte basis. If Wienand and the sheriff were to be
given notice hereof, the sheriff could easily
ensure that payment was
made from his account to that of Wienand prior to the grant and
service of an order prohibiting him from
doing so. This will cause me
irreparable loss as Wienand does not have the means to repay me the
money.”
[5]
I note that the applicant founds the right to the relief he seeks on
the grounds that he made the payment under duress. Mr Elliot
for the
applicant submitted that on the facts there are no reasons to have
serious doubt as to the version of the applicant, and
that the
applicant had established a prima facie right although open to some
doubt. He submitted that: “Having regard to
the inherent
probabilities, the applicant was forced to settle the debt of a third
party in circumstances where he did not owe
the debt himself. In
other words, some external force, i.e. duress was brought to bear on
the applicant’s state of mind that
compelled him to make the
payment from his own bank account to that of the sheriff.”
[6]
The deputy sheriff (Stander) arrived at the private residence of the
applicant on April 29, 2018 in the early morning, duly
empowered to
attach goods owned by Osmosis in respect of an arbitration award in
favour of Wienand. He explained that, as is the
norm, he needed to
compile an inventory of sufficient goods to secure the judgment debt
and that such goods, although attached,
would not be removed from the
premises at that stage. The founding papers do not allege that
Stander informed the applicant that
he was going to remove the
assets. There is only a bald denial of Stander’s averments in
this regard in reply.
[7]
According to the founding papers, applicant told Stander that he was
at the wrong address as he was at applicant’s private
residence
and he had caused Osmosis to change its registered address. This was
not true. In his founding papers, he states that
he accepts that the
effective date of the change of address was 1 May 2018 but avers:
“However, this does not detract from
the fact that Osmosis has
no assets capable of attachment at my home in Melbosstrand.”
Applicant told Stander he was not
going to let him into the premises.
Stander replied that he would then have to leave and return with the
police.
[8]
What then transpired, according to the applicant, were calls to his
attorney and after the latter had telephoned the sheriff,
an
agreement was reached that if applicant and his wife travelled
immediately to the police station to depose to an affidavit
confirming that the assets on the property were their personal assets
and did not belong to Osmosis, then the sheriff would accept
that as
a fact, and the deputy sheriff would be recalled. Applicant avers
that he went inside and told his wife to get dressed
immediately and
then went outside to tell Stander they were going to go the police
station but was shocked when Stander informed
him that he had been
contacted by the Sheriff, who had told him that an affidavit would
not suffice and that he must attach the
assets.
[9]
I note that on applicant’s version Stander had not entered his
property and that his wife was inside the property. Stander
avers
that he never saw applicant’s wife, daughter, his housekeeper,
or any of the neighbours that morning. This is relevant
because the
legal basis for applicant’s case is supported in his founding
affidavit as follows:
“
The
payment was made by me under protest
28. More than an hour had
passed since the deputy sheriff had arrived at my home. My family
were all in a state of shock. They were
horrified that someone could
arrive so early in the morning and demand to attach all the assets in
our home. I reiterate that my
wife and I were humiliated by the
experience in front of our child, our domestic worker and our
neighbours. The deputy, on the
instructions of the sheriff, insisted
that he required access to my home to prepare an inventory and to
attach all the assets.
I realised that the only option open to me was
to make the payment to the sheriff from my personal bank account to
the sheriff’s
account as Osmosis does not have the funds to pay
Wienand at present. I made it clear to the deputy that I denied that
I was obliged
to pay the debt of Osmosis personally but that I was
only doing so to avoid the continuing trauma and humiliation to my
family.
My attitude towards the unlawful conduct of the sheriff and
his deputy, coupled with my unequivocal statement to the deputy that
I was not liable for the debts of Osmosis, constitutes a clear
communication to the deputy that I was asking the payment under
protest, although I did not use these express words.
29. I have been advised
by my legal representatives that the insistence of the sheriff and
his deputy that my and my wife’s
assets be attached in our home
constitutes an unlawful threat for the unlawful detention of goods
made to pay a sum of money not
due to me.”
[10]
Hyperbole aside, the above paragraph founds applicant’s case in
the notion of “payment under protest” and
what is termed
‘duress of goods’. The law on ‘duress of goods’
was dealt with in the matter of
Shuttleworth
v Reserve Bank and Others
[1]
when the SCA made reference
to early case law as follows:
“
[33] It is now
necessary to consider whether the 10% levy unlawfully imposed
by the Reserve Bank has to be repaid to Shuttleworth.
It is common
cause that the levy was paid by Shuttleworth under protest to the
Corporation of Public Accounts as the representative
of the Treasury.
He therefore pursues the repayment claim against the minister. Almost
a century ago in Union Government (Minister
of Finance) v Gowar
1915
AD 426
at 433 – 444, Innes CJ observed:
'It would be in the
highest degree inequitable that the Treasury should be permitted to
retain what it had no right to claim; and
the question is whether the
law will allow it to take up such a position. . . . It seems to me
that money wrongly exacted by the
possessor of goods from the true
owner as a condition precedent to their delivery, and paid by the
latter not as a gift, but in
order to obtain possession of his own
property and with a reservation of his rights would be recoverable by
a condictio. . . .
Where goods have been wrongly detained and where
the owner has been driven to pay money in order to obtain possession,
and where
he has done so not voluntarily, as by way of gift or
compromise, but with an expressed reservation of his legal rights,
payments
so made can be recovered back, as having been exacted under
duress of goods. The onus of showing that the payment had been made
involuntarily and that there had been no abandonment of rights would,
of course, be upon the person seeking to recover.'
Wessels AJA in a
concurring judgment stated (at 453):
'I think we may well take
the further step and hold that a payment is involuntary and,
therefore, recoverable, even though it was
not made metus causa in
the Roman law sense, but was made under pressure at the demand of one
in authority who had it in his power
to withhold the property or to
suspend the rights of the person making the payment.'
[34] In Commissioner for
Inland Revenue v First National Industrial Bank Ltd
[1990] ZASCA 49
;
1990 (3) SA
641
(A) at 647C – D, Nienaber AJA, after referring with
approval to the aforesaid dicta from Gowar, stated:
'(T)he condictio indebiti
is not, of course, confined to the recovery of an indebitum solutum
which was involuntary because it was
paid by mistake; it is now
also available when the payment (or indeed any performance), although
deliberate, perhaps even
advised, was nevertheless involuntary
because it was effected under pressure and protest.'”
[11]
The issue of whether payment has been made ‘involuntarily’
or not must be decided on the facts of each case as
held in
Goldroad
(Pty) Ltd v Fidelity Bank (Pty)Ltd
[2]
.
In that matter, the plaintiff had instituted action in a Provincial
Division for the recovery of an amount it had paid under protest
in
settlement of an amount due under a loan agreement. The plaintiff
based its case on the contention that the amount had been
paid under
duress. From the evidence it appeared that the plaintiff wished
to settle the amount of the loan as it had acquired
financing from
another financial institution at more favourable terms. The duress
exerted upon the plaintiff had been (i) a threat
by the defendant to
foreclose on plaintiff (the plaintiff was already in arrears); (ii) a
threat by defendant to take steps against
the plaintiff in respect of
another different and unrelated agreement between the parties; and
(iii) that time was of the essence
with regard to the offer by the
other financial institution. It was held, relying on the
Gower
judgment, that in such a claim the money had to have been paid
involuntarily: the payer, for example, having been driven to pay
in
order to facilitate the enjoyment of a right wrongly withheld.
Because the threats alleged to have been made to the plaintiff
had
not been shown to be illegitimate, the payment could not be
considered illegitimate as required by law.
[12]
Further and important for the matter before me, the Court in
Goldroad
found that the plaintiff, far from having paid involuntarily, in
fact had had a few options open to it, namely to accept and pay
the
settlement amount as determined by the defendant and be released from
the debt; or to refuse to pay the determined amount and
try to
continue the monthly instalments as originally agreed; or not to pay
anything at all and face the consequences…”
[13]
In my view, the applicant has failed to discharge his onus to show
that he paid the money under threat. At the time the attachment
was
sought, his residential address was also the registered address of
Osmosis. The sheriff thus was not acting unlawfully or illegitimately
in seeking to attach the goods. Furthermore, the applicant had a
number of options. He could have let the deputy make an inventory
and
proceed to ensure that Osmosis claimed ownership of the goods and the
sheriff issued an interpleader, given that Osmosis, of
which he is a
director, owes the monies in question. He could have approached this
court on an urgent basis (and not ex parte)
to stay the execution
before any goods were removed from his premises. I find that on a
balance of probabilities and on the papers
before me, that for
whatever reason, applicant did not want the sheriff to enter his
private residence and took a voluntary decision
to pay the monies
from his private account. In addition, given that the Stander never
entered the house nor saw applicant’s
wife, daughter or
housekeeper, applicant’s version of humiliation and threat is
placed under serious doubt.
[14]
Much was made in submission by Mr Elliot about the alleged breach of
the agreement made between the sheriff and applicant’s
attorney. This is not material to a decision in this matter. Having
found that the payment was not made under duress or under protest
on
the facts, the applicant has not established ‘a prima facie
right though open to some doubt’ to the interdictory
relief he
seeks i.e. that this court should confirm an order that such monies
should be repaid to him pending an action to be brought
in this
court.
[15]
This brings me to the question of costs. The justification for
rushing to Court on an ex parte basis is given as follows in
the
founding papers:
“
This application
is brought on an ex parte basis without notice to the respondents. In
the case of Wienand, were he to get notice
hereof, he could quite
easily contact the sheriff and request him to pay over the funds
prior to the hearing of the matter and
thereby frustrate me in
obtaining any relief in this matter. Likewise in the case of the
sheriff, were he to obtain notice of this
application and given his
attitude towards me, there is every probability that the sheriff will
pay the funds to Wienand which
will leave me without remedy.”
[16]
The above is based on an assumption that the sheriff had “an
attitude” towards the applicant personally and would
have thus
gone ahead and paid out the money on notice of an urgent application
to this court. There is no factual basis for this
belief over and
above that, on applicant’s own version, the sheriff changed his
mind that an affidavit averring that none
of the possessions in the
property were owned by Osmosis would suffice. Stander avers in
answering papers that when the applicant
went into the house to
contact the sheriff and presumably spoke to his lawyer, he was
waiting in his vehicle and:
“
I read the CIPRO
notice of change of registered address and noticed that the change in
address would only become effective the next
day, being 1 May 2018.
Upon discovering this I telephoned Mr Basson to inform him of this
and obtain his further instructions.
Mr Basson instructed me
to continue with the attachment process in execution of the writ. I
advised the Applicant of the instructions
when he returned.”
[17]
In his confirmatory affidavit, the second respondent, Basson,
specifically denies the applicant’s version of Bagg’s
conversation with him on 30 April 2018 as follows:
“
I deny the
applicant’s averment contained in paragraph 24 and 25 of the
founding affidavit wherein it is alleged that I came
to an agreement
with Bagg that the attachment procedure would be stayed on provision
of affidavits from the Applicant and his wife
to the effect that
there are no assets of the judgment debtor on the premises.
I advised Bagg that, if
the Applicant was able to furnish me with such affidavits already
prepared, that and only in that case I
would have been prepared to
accept such as sufficient reason to stay the attachment.
Since this was not the
case and since the writ had to be issued on an urgent basis, I
advised my deputy to proceed with the attachment
after he confirmed
with me that the address he attended was still the current registered
address for the judgment debtor.”
[18]
The applicant denies this version in reply and calls the sheriff
“disingenuous” at best and avers inter alia that:
“Had
Mr Bagg been informed by the sheriff that, only in the event that
such affidavits had been prepared and were available,
he would have
stayed the attachment, Mr Bagg would have insisted that I be afforded
sufficient time (an hour or so) to obtain the
affidavits in order to
protect the interests of my family and myself;” There is no
confirmatory affidavit to the replying
papers by applicant’s
attorney, Mr Bagg.
[19]
In view of the above, I do not accept that applicant can properly
rely on the allegation that Basson had ‘an attitude
against
him’ and would have paid out the money to Wienand had an urgent
application been made on notice.
[20]
The applicant’s stance is that “the formalistic and
technical approach of the sheriff and his deputy in contending
that
the effect of the change of address would only take place the
following day, 1 May 2018, demonstrates their bad faith in this
matter and constitutes a further justification for a costs order to
be awarded against them.” As far as the Court is concerned
the
second respondent and his deputy were lawfully and legitimately doing
their duty. The fact that the applicant merely had to
let Stander in
to allow him to make an inventory that day should not be overlooked.
[21]
I have found that the applicant has not made out a case for the
confirmation of the rule nisi and the rule therefore must be
discharged. All parties have sought punitive costs orders. In law and
fairness, the applicant must pay the costs of first and second
respondent. First Respondent (Wienand) was brought to Court on the
return day and wished to place his response to the application
before
Court which he was entitled to do. The second respondent was faced
with an ex parte order and the threat of punitive costs
against his
office. As was submitted on behalf of second respondent, nothing
prevented the applicant approaching the Court on notice
requesting
the same relief with a prayer for costs only in the event of
opposition. I also take into account that applicant did
not tell the
truth to Stander, i.e. when he said that his private residence was
not the residential address of Osmosis. Stander
only discovered that
it was, when he looked at his documents while waiting in his car for
the applicant to come out of his house.
He also freely impugned the
integrity of the sheriff’s office. The Court needs to show its
disapproval in this regard.
[22]
In the circumstances, it is my view that attorney-own client costs
are apposite in relation to second respondent. Given that
Wienand was
not present at the premises on the day in question and therefore had
no evidence to give as to the issue of payment
under duress, and
further that the founding papers did not threaten costs against him
personally, a special costs order in his
favour is not appropriate.
The exercise of my discretion in respect of costs is reflected in the
order below.
[23]
Order
1. The rule issued on 2
May 2018 is discharged;
2. Applicant is to pay
first respondent’s costs;
3. Applicant is to pay
second respondent’s costs on an attorney- own client scale.
_______________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances
Applicant:
G. Elliot instructed by Andrew Bagg Attorneys
First
Respondent: Herold Gie Attorneys
Second
Respondent: GM Viljoen instructed by E. Basson Attorneys.
[1]
2015 (1) SA 586 (SCA)
[2]
1996(4)SA 1151(T)