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RATSHIBVUMO DJP:
Delivered : This judgment in interpleader application was handed down
electronically by circulation to the part ies and/or their representatives by email and
availing on CaseLines . The date and time for hand -down is deemed to be 1 0H00
on 13 January 2025 .
[1] Introduction .
The y ear 2025 marks 19 years and counting, since the summons in this matter
was issued . No trial appears on the horizon as no ne of the litigants seems
interested in setting it down for hearing . The Norms and Standards for the
Performance of Judicial Functions (Norms and Standards) , promulgated by the
Chief Justice on 28 February 2014 provide that civil trials should be finalised
within 12 months from the date of issue of summons.1 Even before the
introduction of the Norms and Standards, litigants have always been entitled to
speedy resolution of disputes by the courts. The courts , through judicial case
management intr oduced by Rule 37A of the Uniform Rules , are expected to
direct the course of litigation in order to achieve what is now contained in the
Norms and Standards.
[2] This case has a protracted history dating back to 11 April 2006 when the First
Claimant instituted an action against the Minister of Justice and the State
Tender Board (the First and Second Defendant s in the main action) . The action
is for delictual damages in the amount of R82 million, over the defendant s’
purported failure to assess competing tenders for the recording and
1 See Government Gazette no. 37390 para 5 .2.5(i)(a).
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transcription services for High Courts and Labour Courts in an open and
impartial manner and for acting negligently in awarding the tender to Sneller
Digital (PTY) LTD .
[3] There has been several interlocutory applications and judgments since the
summons was issued , which pushed the trial into obscurity. The First Claimant
is the Plaintiff in the main action and is being represented by its owner, Mr.
Munilall. In 2017 an order was granted by Ches iwe AJ , postponing one of the
interlocutory applications sine die , and ordering the State Tender Board to pay
wasted costs . The State Tender Board is not a party in the proceedings before
this court . As a result of that order, the Applicant attached the goods belonging
to the Second Claimant to satisfy the debt owed by the State Tender Board .
The Second and Third Claimants objected to th is attachment , causing the
Applicant to issue an interpleader notice in terms of Rule 58 .
[4] When I was appointed to preside over the matter, it was hoped by the Judge
President of Gauteng Division of the High Court, Mlambo JP (the Judge
President), that I would finally deal with the trial, as it is evident from the
directives that came together w ith the notification of the appointment. This was
however not to be, as this judgment pertains to another interlocutory hearing
flowing from the order made in 2017. To avoid delving into issues already dealt
with or those which belong t o the trial court, history leading up to this
application would be as concise as may be relevant for the purpose of this
judgment . The directives given by the Judge President referred to above,
amongst others , a directive to hold a pre -trial conference, became irrelevant
when the date by which the trial had to be set down, came and passed without
the matter being set down.
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[5] It important at this stage to state that, the moment my appointment was made
known to the litigants, the First Claimant uploaded several documents on
CaseLines and also sent them via email s, in which he protested against the
directive to hold a pre -trial conference. Most of these documents did not reach
my attention in advance, as Mr. Munilall sent them whenever an opportunity
arose and in quick succession s. Hardly a day (including weekends) went by
without him sending an email although in others, he was only updating what
he had already sent or uploaded . On the date scheduled for the pre -trial
conference, which was held virtually , I was stunned to find a plethora of emails,
one of which indicated that my services would no longer be required by Mr.
Munilall . The email in question demanded that the Judge President should
appoint a nother judge.
[6] It must have been my confessed ignorance of what he had written that prompted
him to abandon his demands and allow ed me to proceed and case -manage the
matter and later, to hear this application, subject to him demanding that I would
only hear the interpleader application. There is a pending application for
rescission of judgment , which he already voiced the interest to have it set down
before a different judge once this judgment is handed down. Since there was
no application for my recusal, I will comment no further regarding Mr.
Munilall’s demands or the way forward in respect of any future applications
and/or the trial . After all, I am just one of the several judges to have dealt with
this matter and handed over the baton for others to deal with what remains.
[7] Background .
Following the issuance of summons by the First Claimant against the Minister
of Justice and the State Tender Board, the former raised a special plea while
the later did not defend the action . The First Claimant applied for a default
judgment against the State Tender Board which application was dismissed by
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Makgoba J on 17 July 2013 . The main reason for the dismissal of the default
judgment was that the State Tender Board had ceased to exist . The a pplication
for leave to appeal before Makgoba J failed as well as the petitions to the
Supreme Court of Appeal and to the Constitutional Court.
[8] Subsequent thereto, the First Claimant launched several applications aimed at
either breathing life into the partic ulars of claim, which were attacked through
exception s or seeking the rescission of judgment handed down by Makgoba J ,
by way of declaratory orders . In the process, and on 24 May 2017, Chesiw e AJ
granted an order, postponing the application that was before her sine die . She
further ordered the Second Respondent, the State Tender Board to bring an
application for condonation, within 15 days. The Second Respondent was also
ordered to pay the Applicant (current First Claimant)’s wasted costs occasioned
by the postponement. These costs have been taxed but remain unpaid.
[9] With the intention to recover the taxed costs, the First Claimamnt brought a n
application for mandamus that was heard by Bezuidenhout J , in which it sought
an order directing inter alia :
“(a) Both Respondents (the Minister of Justice and the State Tender Board) must
admit that all references to the State Tender Board is actually reference to the
Department of Finance.
(b) The various employees of the Department of Finance and State Attorney are to
pay the wasted costs of R2303.50 on behalf of the Second Respondent relating from
the order of Chesiwe AJ o f 24 May 2017.
(c) The wasted costs of debt collecting and preparing for this hearing be paid by the
Director General of Finance jointly, with the State Attorney and its employees, Mr.
Chowe and Ms. Zenani.”2
2 See paragraph 17 of Judge Bezuidenhout’s judgment, dated 12 November 2021 on p. 026 -19 on CaseLines ,
under this case number.
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[10] This app lication was dismissed on 12 November 2021. In dismissing the
First Claimamnt ’s application for mandamus , Bezuidenhout J reasoned that
“the relief that is sought… cannot be granted when the specific persons or
entities against which the relief is being claimed are not joined as parties in the
proceedings. They have to be joined and proper notice be given to them of the
relief that is being sought against them.”3 The court went on to demonstrate
how impractical it was for it to order the State Tender Board to comply with
the order to pay R2 303.50 in taxed costs , while the question on whether th e
Board still existed was referred to trial by an order of Davis AJ, and which
order was not appealed against. The court however left it open to the First
Claimamnt, to proceed in terms of Rule 45 , against the Second Respondent (the
State Tender Board), for as long as the First Claimant was of the view that the
State Tender Board still exists and that the Minister of Finance was responsible
for Board ’s liabilities .
[11] The First Claimant opted to proceed in terms of Rule 45 , resulting in the
Applicant attaching three desktop computers from the offices of the Second
Claimant on 04 August 2023. On 04 August 202 3, the Second Claimant
directed a letter to the Applicant , demanding the return of the attached goods
as they did not belong to the judgment debtor (the State Tender Board) , nor
was it (the Second Claima nt) a party to the proceedings resulting in the
judgment debt . On 17 August 2023 , the Applicant filed an interpleader notice,
calling on the parties to show cause to substantiate their opposing claims to the
goods so attached . Both the First and the Second Claimants filed their claims
to the attached goods in line with the Applicant’s notice. The First Claimant
seeks an order in which the Second Claimant is held liable for the costs
awarded against the State Tender Board. The Second and the Third Claimants
3 See paragraph 19 of Judge Bezuidenhout’s judgment, supra .
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seek an order in which the goods are returned to the owner and that the First
Claimant should be ordered to pay costs on attorney and own client scale.
[12] Issues for determination .
The court is called upon to answer, if the Second claimant is liable for the
judgment debts incurred by the State Tender Board as well as whether the
goods belonging to the Second Claimant can be attached in lieu of the judgment
debt obtained against the Board. Flowing from the two issues left to the court
for determination would be a question of whether the State Tender Board still
exists or not . Secondary from these questions would be the q uestion on whether
these issues have not been adjudicated by the courts in the past.
[13] Discussion.
It is common cause that summons was issued against the Minister of Justice
and the State Tender Board as the First and the Second Defendants in the main
action . It is also common cause that the order by Ches iwe AJ was against the
State Tender Board, making it the judgment debtor, and not the National
Treasury or the Minister of Finance (the Second and the Third Claimant in
casu. The order sought by the First Claimant against the Second and the Third
Claimants in this interpleader is no different from the order sought in the
application for mandamus that was dismissed by Bezuidenhout J save for the
fact that in one, the o rder was sought pre attachment of the goods, and in the
other, it was post attachment.
[14] The validity of a writ of execution issued against the State Tender Board
is not an issue before this court. For purposes of this application, it should be
presumed that it remains valid. The duty on every organ of the State to obey a
court order is not disputed either. What is rather contentious is the attachment
of goods belonging to a party that was not cited in the litigation before the court
or that was not listed as a judgment debt or in the writ.
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[15] The First Claimant relies on section 12(1) of the State Tender Board Act4
which provides,
“12. Administrative Work.
(1) All administrative work, including the payment and receipt of moneys, in
connection with the performance of the functions and the exercise of the powers
of the board shall be performed by officers and employees designated by the
Director -General: Finance. ”
[16] The First Claimant’s contention is that, if the administrative work,
including the payment of moneys, in connection with the performance of the
functions and the exercise of the powers of the board is performed by officers
and employees designated by the Director -General: Finance ; then the said
Director -General can also be held liable for the debts incurred by the board and
where the Board is a judgment debtor. Clearly, this argument does not appear
from the words used in the legislation and the First Claimant does not present
any authority to back up its interpretation to that effect.
[17] If the First Claimant’s interpretation is correct, it would as such make no
difference if the judgment debtor is the Board or the National Treasury as the
two would be one and the same for the reason that payments for debts are made
from one source. But the reading of the Act as a whole makes the Board to be
a separate institution from the National Treasur y. There is equally no basis on
which it can be held that payment of a judgment debt is an administrative work
as provided by section 12 of Act 86 of 1968.
[18] Before proceeding in terms of Rule 45 , the First Claimant was aware of
the hurdle s before it regarding the execution of a writ as the costs order by
Ches iwe AJ . This view is premised on the fact that the order was against the
4 Act no. 86 of 1968, as substituted by s. 6 (a) of Act 74 of 1971 and by s. 5 of Act 18 of 1987 .
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State Tender Bo ard, a party that in the recent past and in the same case, an
application for default judgment against it was refused for the reason that it did
not exist.5 The First Claimant knew very well that an attempt to appeal against
that ruling was dismissed , and so was the petition before the Supreme Court of
Appeal and the Constitutional Court. Any submission before this and other
courts to show that the State Tender Board still exists should be seen as an
attempt to cause this court (and other courts before which this attempt was
made) to sit as a court of appeal whe reas it has no such jurisdiction .
[19] The First Claimant was equally aware that the question on the existence
of the State Tender Board was dealt with in a rescission application heard by
Davis AJ despite the fact that it (the First Claimant) had exhausted the appeal
avenues against the findings by Makgoba J regarding the same dispute . Davis
AJ refused to make a finding, rather holding that the dispute regarding the
existence or otherwise of the State Tender Board could only be determined in
a trial between the parties in the main action.6
[20] The fact that there was a court order that held that the judgment debtor did
not exist, should have concerned the First Claimant . It is therefore not
surprising that it chose not to just attach the Second Claimant ’s goods to sati sfy
the judgment debt. It could as such not just rely on its own understanding and
interpretation of section 12 of Act 86 of 1968 but rather approach the court for
a declaratory order . This was a wiser move in my view. I however do not see
much wisdom in persisting on attachment of the Second Claimant ’s goods and
demand ing that it should be held liable for this debt, especially after the
5 See the judgment by Makgoba J dated 17 July 2013 on p. 009 -20 on CaseLines where the following appears:
“The persistence by the Plaintiff that the Second Respondent [State Tender Board] still exists cannot hold water…
In the circumstances, the application for default judgment cannot be sustained as against a non -existent body.”
6 See paragraph 10. 2 of the order in the judgment by Davis AJ dated 23 September 2016 on p. 26 -11 on
CaseLines .
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warning by Bezuidenhout J referred to above and all the other judgments by
other judges that dealt with the same aspect .
[21] This court is of the view that the order sought by the First Claimant in this
application had been adjudicated already in a judgment handed down by
Bezuidenhout J who reached a conclusion th at the National Treasury and the
Office of the State Attorney could not be held liabl e for the costs awarded in a
litigation that they were not part y to. In that judgment, Bezuidenhout J
dismissed the application sought by the First Claimant. That judgment has not
been appealed against and remains binding. This court has no reason to find
differently. The claim by the Second and the Third Claimants to the attached
goods should be upheld.
[22] Costs.
Costs are entirely within the court’s di scretion, which should be exercised
judicially upon a consideration of various factors.7 So many mishaps played
out in various applications in this case because when orders that did not favour
the First Claimant were handed down , instead of it accepting the final outcome
thereof , it would rehash the same issues in different wording , in a new
application and before different judges but meant to achieve similar outcome
sought in earlier applications . Almost all the judgments handed down in
various interlocutory applications in this case had one aspect to be considered,
being the existence of the State Tender Board . Had the First Claimant accepted
the final determination by Makgoba J (including outcome of appeal or petition
process), I doubt if this interpleader would be before the courts today.
[23] Had there been acceptance of the order by Davis AJ referring the disputed
issues to trial (which order came after the determination on the dispute by
7 Roos v Simonsig Landgoed 1994 (4) SA 204 (A) at 208D -G.
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Makgoba and the courts of appeal), the main action would have been finalised
several years ago. Acceptance of the outcome does not take away the litigant ’s
right to appeal . That however does not entail bringing same issues before
different judges while the orders made in the past are not set aside on appeal .
There is a potential to have conflicting rulings from judges of the same
jurisdiction sitting as single judges. That is unwarranted and should be avoided.
[24] I highlight the above to demonstrate how the conduct of the First Claimant
deserve s to be frowned at by the court. The First Claimant submitted that no
cost order should be made against any of the litigant s arguing that in line with
the B iowatch judgment, the application raised constitutional issues. No
elaboration was made as to how an interpleader application would raise
constitutional issues or what such constitutional issues are. Even if there were
genuine constitutional issues, the conduct of this application especially when
issues that had been adjudicated upon already are rehashed for a fresh
judgment , deserve s to be frowned at. It is as a result of this litigation style that
this matter has overstayed its welcome in the court rolls . Given all the above, I
am of a view that costs should be awarded on punitive scale against the First
Claimant .
[25] Order .
For the aforesaid reasons, I make the following order.
[25.1] That the Second Claimant’s claim to the goods subject to the writ of
execution in the interpleader is upheld;
[25.2] That the First Claimant’s claim in the interpleader is dismissed ;
[25.3] That the Applicant and/or the Registrar in possession of the goods
removed by the Applicant is directed to release the attached goods to the
Second Claimant ;