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[1] The applicants approached the urgent court on Friday, 17 January 2024 for
an order in the following terms:
“2. The warrant of execution issued under the abovementioned case
number on 25 September 2024 be stayed pending the adjudication of
the recission application in respect of the order granted under the
abovementioned case number in favour of the second respondent on 23
August 2024 and as already uploaded to CaseLines.
3. That the respondents be interdicted from taking any further steps in the
execution of the order granted under the abovementioned case number
on 23 August 2024 pending the finalisation of the rescission application,
including a sale in execution.
4. That this order shall lapse upon final judgment being given in respect of
the rescission application.
5. The applicants are to obtain a hearing date on the unopposed roll in
respect of the rescission application within four weeks from the date of
this order, unless opposing papers are filed, in which case the applicants
are to ensure that the Uniform Rules and the Directives of this court in
respect of the opposed motions and enrolment thereof are complied with.
6. No order as to costs except in the event of opposition.”
[2] The warrant of execution referred in prayer 2 of the notice of motion flows from
a judgment granted in favour of the second respondent .
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[3] Under the case number of the present matter the second respondent , as the
applicant, brought proceedings against Tammy Taylor Nails Franchising
Number 45 (Pty) Ltd and the first and second applicants, who w ere second
and third respondents in those proceedings. For purposes of clarity, I will refer
to the applicants as Mr and Ms Viljoen and to the second respondent as Ms
Mduzulwana.
[4] Ms Mduzulwana obtained an order in her favour befor e Nharmuravate AJ on
23 August 2024 . The order reads:
“1. The franchise agreement concluded between the applicant and the first
respondent is declared void and unenforceable on the grounds that it
does not comply with the provisions of the Consumer Protection Act 68
of 2008, read with regulations 2 and 3 of the Consumer Protection Act
Regulations, 2011.
2. The second and third respondents (the current applicants – my insertion)
are declared to have carried on the business of the first respondent in a
manner prohibited by section 22(1) of the Companies Act, 71 of 2008.
3. The second and third respondents are declared liable jointly and
severally with the first respondent in terms of section 218, read with
section s 76(3) and 77 of the Companies Act, 71 of 2008 for the
repayment of R215 000.00 to the applicant (Ms Mduzulwana).
4. The first, second and third respondents must pay the amount of
R2 145 000.00 to the applicant within seven days from date of this court’s
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order, inclusive of interest thereon a tempore morae calculated from the
date of demand to date of payment, jointly and severally, the one paying
the other to be absolved.
5. The Registrar of this court is to forward a copy of this court’s order and
a copy of all papers filed in this application to the National Prosecuting
Authority of South Africa for investigation and possible prosecution per
sections 214 and 216 of the Companies Act, 71 of 2008.
6. The first, second and third respondents are to pay the costs of this
application on a party and party scale, including the costs of counsel on
scale C, jointly and severally.”
[5] On 29 October 2024 the Sheriff (the first respondent) executed a warrant of
execution in respect of the aforesaid judgment. The applicants, Mr and Ms
Viljoen contend that this was the first occasion on which they heard about the
judgment that had been granted against them. They contend that they were
never notified by their former attorney of the hearing date of this matter on 2 3
August 2024. After the attachment on 29 October 2024, the goods attached
were removed on 12 November 2024.
[6] Ms Mduzulwana contends that the applicants were aware of the hearing date
on 23 August 2024. They were served with a notice of set down on 8 April
2024 enrolling the matter for 23 August 2024. Their attorney then served a
notice of withdrawal as attorney of record on 14 May 2024. The former
attorneys were however reappointed and filed a notice of appointment of
attorneys of record on 15 July 2024. Despite their attorneys being fully aware
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of the date of the hearing, Mr and Ms Viljoen failed to file opposing papers and
the matter proceeded to judgment on 23 August 2024 on a n unopposed basis.
[7] Mr and Ms Viljoen launched a recission application on 30 October 2024 under
the same case number. They concede that this application is deficient and
requires supplementing. So, for example, the founding affidavit does not
address the substantive requirements for a rescission application. The only
explanation provided relates to the reasons for their default . The explanation
offered reads as follows:
“4.3 During or about 22 May 2024 the file held by my current attorney of
record was transferred to AH Stander & Agenbag Attorneys as is evident
from the collection confirmation of the file, which I attach hereto as
annexure “C”.
4.4 The already prepared filed notice, annexure “A” hereto, accompanied the
said file.
4.5 Then, after an impasse was resolved with my current attorneys, the files,
which included the files on which this matter was returned to my current
attorneys of record.
4.6 It was during this period that, unbeknown to us, default judgment was
obtained.”
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[8] As stated above, the set down had been duly served on Mr and M s Viljoen’s
attorneys prior to the attorneys’ withdrawal. The attorneys were in any event
back on record when the matter proceeded on 23 August 2024.
[9] The application for rescission does not deal with the merits of the defence
which Mr and Ms Viljoen contend they would have advanced. It relates merely
to an explanation for their non -attendance of the trial and the period that
passed thereafter until the rescission application was launched.
[10] After the first attachment referred to above, Mr and Ms Viljoen approached the
urgent court on 13 November 2024 seeking an interdict suspending any
further steps taken in execution by the respondents under case number
04922/2024. They also applied for the return of an inventory of listed items
which had been attached and removed on 2 November 2024. The interdicts
were sought to operate as interim interdicts pending finalisation of the
application for rescission of judgment. It is during those proceedings that a
Ms Millar filed an interpleader affidavit contending that all the attached assets
were her property. Ms Millar contended that the goods belong to her and that
Mr and Ms Viljoen were utilising the property with her consent.
[11] The application was heard by Basson J on 15 November 2024 and the matter
was struck from the roll for want of urgency . Mr and Ms Viljoen were directed
to pay the costs jointly and severally on a punitive scale.
[12] The application for rescission is admittedly deficient in a number of respects.
It lacks valid reasons for the default of Mr and Ms Viljoen, taking into account
that their attorney of record who had received the notice of set down was back
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on record by the time the matter was being heard. The application for
rescission does not contain a prima facie defence to the claim and does not
purport to demonstrate prospects of success. These deficiencies are
acknowledged in the founding papers of Mr and Ms Viljoen. During the
hearing before Basson J in November 2024 the applicants indicated that they
intended filing further affidavits to address the deficiencies in the application
for rescission. The applicants have to date failed to supplement the rescission
application.
[13] In the proceedings before Basson J, Ms Millar states in her interpleader
affidavit in the November 2024 proceedings that:
“Each and every asset irrespective of its value, currently referenced in the writ
belongs to myself and to no other party whatsoever.”
[14] After the matter was struck from the roll and on 6 December 2024 an
advertisement was placed in a newspaper advertising the auction of the
attached goods. The attached goods listed in the newspaper advert are the
same assets which form the subject of the first urgent application and are the
same assets which fall to be sold at an auction scheduled for 21 January 2025.
[15] On 28 November 2024 the attorneys for Ms Mduzulwana wrote to the former
attorneys of Mr and Ms Viljoen . In that letter the following is stated:
“Needless to mention that the so much touted rescission has no prospects of
success, same as the application for stay, our client sees these too as a way
by your clients to pass time in hope of a m iracle of soughts . Our instructions
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are to decline your client s’ proposal. Any urgent application will be vigorously
opposed.
The sale will be advertised soon.”
[16] The sale that was being referred to was also referenced in a l etter of M r and
Ms Viljoen ’s attorneys dated 25 November 2024. In that letter the attorney s
state in the opening paragraph:
“We refer to the above matter and were now informed by our clients that they
were informed by yourselves that an auction is scheduled for 28 January
2025. ”
[17] During November 2024 the then attorneys of Mr and Ms Viljoen tried to
negotiate the posting of security in respect of the goods under attachment.
They offered diamonds which were stated to have a value in excess of R2,7
million, being an amount in excess of the judgment debt granted against them.
The second respondent contends that she did not accept the security posted
and left it for the first respondent, the Sheriff, to consider.
[18] The applicants contend that the fact that they had provided security in the form
of the aforesaid diamonds resulted in them believing that the sale in execution
would not proceed.
[19] The applicants’ attorney up to 12 Dece mber was Mr Muller. His mandate was
terminated on 12 December 2024 and new attorneys were appointed to act
on behalf of Mr and Ms Viljoen.
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[20] On 7 January 2025, while the Viljoens were in the United States, the Sheriff
telephonically informed Mr Viljoen that the value of the jewellery when sold on
auction only amounted to R1,3 million and therefore he would attend at their
premises on 14 January 2025 to remove movable assets to satisfy the
judgment debt. On 8 January 2025 the current attorneys for Mr and Ms Viljoen
wrote a letter to the Sheriff, contending that the security provided had been to
the Sheriff’s satisfaction and that the sale in exe cution would not proceed until
such time that the rescission application was finally adjudicated. The Sheriff
did not agree that the security provided would be adequate and he indicated
that if the rescission application was not brought by 14 December 202 4, he
would proceed with the sale in execution.
[21] The Viljoens return ed to South Africa on 9 January 2025, and they consulted
with their legal representatives on 10 January 2025.
[22] The first respondent indicated that he would remove their assets on 14
January 2025 in order to prepare for the sale in execution that was to occur
on 21 January 2025. They contend that this was the first time they heard that
the date of the sale was 21 January 2025.
[23] Although being under the impression that the rescission application was set
down for 15 January 202 5, the applicants advised that it is not on CaseLines
and the matter is not enrolled for that date.
[24] Mr and Ms Viljoen blame their previous legal representatives for not
supplementing the rescission application and contend that they were negligent
in that regard.
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[25] The opposition to the application by the Viljoens focuses on t hree core
contentions. First, that urgency has not been established. Second , lis
pendens - as the merits of the November urgent application are still pending in
this division. Third, that Ms Millar is an essential party to these proceedings
and shou ld have been joined.
[26] Ms Mduzulwana contsnds that t he proverbial clock started ticking on the issue
of urgency in November. In particular, reference is made to the aforesaid letter
of 28 November 2024 in which the attorneys for Ms Mduzulwana advised the
applicants’ attorneys to bring their urgent application, and to advise that it
would be opposed.
[27] It is apparent from the timeline that the applicants and more particularly their
legal representatives were aware in November of an auction scheduled for
28 Janua ry 2025. As they were advised on 28 November 2024 that they
needed to bring an urgent application to avert the auction, the issue of urgency
looms large.
[28] In addition to the aforesaid considerations, it bears noting that the notice of
motion in the current application envisages a hearing on 14 January 2025.
However, the matter was not enrolled on the urgent roll on that date, and it
was set down for hearing unilaterally on Friday, 17 January 2025. This is a
deviation from the normal set down provisions in the directives of this division.
A specific case needs to be made out in the founding papers if the “Thursday
for Tuesday ” rule is not complied with and particularly where a matter is heard
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at a time selected by the applicants during the course of an urgent week, i.e.
a time not allocated by the Judge administering the urgent roll.
[29] The lack of urgency is self-evident. The applicants have therefore been
dilatory in pursuing their remedy and urgency is self -created. Further, no case
has been made out for condonation for non -compliance with the practice
directives regarding the time and set down of an application other than at times
determined by the Judge administering the urgent court roll. The matter cou ld
be struck on this ground alone.
[30] However, the second defence raised by the respondents, namely lis pendens
also gains traction. The goods to be sold at auction on 21 January 2025 are
the same goods which were the subject matter of the first urgent court hearing
in November 2024 and the list of assets published on 6 December 2024. In
respect of those assets, Ms Millar claimed to be the owner. However, she has
not bee n cited in these proceedings, despite her very clear and direct interest
in the relief being sought.
[31] Counsel for the applicants contended that the goods that were attached in
October and November 2024 were released back to the applicants and it is
contended that the facts have therefore changed since November 2024. It is
contended that the current applic ation does not relate to any assets in which
Ms Millar asserts any rights. This proposition cannot be accepted. When
goods are attached by the Sheriff and are removed, a judicial pledge is
established over such assets. It falls within the powers of the Sheriff to
determine whether goods that have been attached and removed may be
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returned to the applicants. For this he sought and obtained security. If he
decides that such goods may be returned, they remain under attachment. For
matters of practicality, they are however returned to the applicants who then
holds possession of those assets on behalf of the Sheriff. A return of goods
under attachment in such circumstances does not constitute a relinquishing of
the writ. Th e writ remains in force. The facts of the current matter demonstrate
that the same goods that were attached in November 2024 f all to be sold on
auction in January 2025. The merits of the first urgent application are still
pending and the defence of lis pendens is establis hed.
[32] So too the defence of non -joinder. Ms Millar asserted a right to all the assets
under attachment in November 2024 and clearly has an interest in the
proceedings before this court. Her non -joinder is fatal.
[33] The applicants contend that the right to the stay that it seeks in the current
application is based on an agreed stay. However, it is apparent that the
second respondent did not agree to any stay. She merely referred the issue
of the jewellery being offered as security to the Sheriff without accepting the
proposal. Either way, the security offered does not affect the list of assets
under attachment. Counsel for Ms Mduzulwana contended that the diamonds
are not up for sale on 2 1 January 2025. Unless specifically attached , this
proposition is accepted.
[34] Further, the letter of 28 November 2024 challenging the applicants to bring its
urgent application, and advising that it would be opposed, is the clearest
indicator thereof that there was no agreement not to proceed with the sale in
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execution in January 2025. The basis upon which the applicants therefore
approach the court for the stay of execution is fatally defective.
[35] Rule 45A envisages the suspension of the execution of a judgment or writ in
circumstances where the failure to do so may result in manifest injustice. Such
injustice would become manifest where a rescission application has been
launched in which the merits that gave rise to the judgment are being
challenged. However, in the present matter the rescission application does
not rise to the level where the merits of the judgment have been assailed in
such rescission proceedings. The threats of supplementing th e rescission
application have come to n aught, despite being raised in November 2024
during the urgent court proceedings that served before Basson J.
[36] I am therefore satisfied that the rescission application does not rise to the level
where it in itself represents the clearest indicator of a manifest injustice if the
stay were not to be granted. In the premises I am satisfied that the application
falls to be dismissed for this reason as well.
[37] In the premises this application fails on a number of grounds:
37.1 The applicants have been dilatory in bringing the application and
urgency is self-created . In additio n no case was established
warranting condonation for non -compliance with the directives of this
division relating to for the set down of an urgent application on a
Friday.