SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

APPEAL CASE NO: A166/2024
COURT A QUO CASE NO: 002870/2023
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED.
DATE 14/02/2025
SIGNATURE

In the Full Court Appeal of :

KOOPKRAG (PTY) LTD Appellant
(Registration Number: 1938/011150/07)


and

TAUTE, BO UWER & CILLIERS INC First R esponden t

CATHERINA ELIZABE TH JEAN JOUBERT Second Responden t

HURSION PATHER
(ID: 9[...]) Third Responden t

SHERIFF OF THE HIGH COURT, UMZINTO Fourth Respondent

FULL COURT JUDGMENT

CORAM: YENDE AJ; LABUSCHAGNE J; MAZIBUKO AJ.
[1] The appellant (“Koopkrag”) entered into an instalment sale agreement with
Ms Sch aal for the purchase of a motor vehicle on or about 28 September
2020. The terms of the Instalment Sale Agreement were inter alia :

1.1 She would purchase from Koopkrag a Nissan Juke with registration
number J[...] 8[...] B[...] G[...] and Vin Number S[...] (thereafter
referred to as “the motor vehicle”);

1.2 The total amount repayable was the amount of R143 182.45;

1.3 Koopkrag would remain the owner of the vehicle until all amounts
due under the Instalment Sale Agreement had been paid.

[2] Ms Schaal and Mr Christo Lundie rented premises from the second
respondent. On 8 February 2022 the first respondent, acting as attorneys on
behalf of the second respondent , the landlord, caused a rent interdict
summons to be issued out of the Magistrates’ Court for the district of
Tshwane Central. The summons was not related to the Instalment Sale
Agreement.

[3] On 28 April 2022 default judgment was granted in favour of the second
respondent against Mr Lundie and Ms Schaal.

[4] The sheriff, the fourth respondent , attached the motor vehicle, owned by
Koopkrag, at the resident ial premises of Ms Schaal on 15 August 2022. The
vehicle was sold in an execution sale at auction and was purchased by the
third respondent.

[5] In the Court a quo Koopkrag instituted an a pplication setting aside the sale
and auction and claiming return of the motor vehicle from the third
respondent.

[6] The application served before Mo gotsi AJ who delivered a judgment on 15
June 2023 dismissing the application. It is against this dismissal that the
appellant appeals to the Full Court.

[7] An application for leave to appeal was dismissed on 8 February 2024 and
leave to appeal was gra nted to this court by the SCA .

FACTS GIVING RISE TO THE PROCEEDINGS BEFORE THE COURT A
QUO
[8] During September 2022 Koopkrag was advised by Ms Schaal that the sheriff
had executed at her premises and in doing so had attached the vehicle.
Koopkrag contacted the sheriff and advised him that Koopkrag is the owner
of the vehicle and that the vehicle could not be sold on auction. The sheriff
asked Koopkrag to provide him with an affidavit confirming ownership and
that the vehicle is currently under an Instalment Sale Agreement.

[9] Koopkrag sent an email to the sheriff on 19 September 2022, confirming that
the vehicle is being financed by Koopkrag and that Koopkrag is the
registered title holder. A copy of the vehicle’s registration certificate was
provided to the sheriff . No affidavit was provided.

[10] On 28 September 2022 Koopkrag followed up to determine whether the
vehicle had been returned to Ms Schaal. The sheriff was reminded that
there is a binding Hire Purchase Agreement in place and that the terms and
conditions are being met by Ms Schaal.

[11] On 28 September 2022 the first respondent wrote a letter to Koopkrag and
copied the sheriff thereon, advising the following:
“Note that the vehicle is attached under a rental interdict. The vehicle can
only be returned to Ms Schaal upon payment of the capital amount as per
the order being R42 000.00. The remaining legal fees our client is willing to
make repayment arrangements for. If Ms Schaal fails to make payment as
mentioned the sale of the vehicle will proceed. As previously informed after
the vehicle is sold the outstanding balance on the vehicle will first be paid to
Koopkrag, which ensures that Koopkrag will suffer no prejudice.
We trust the above to be in order.”

[12] The matter was discussed with Koopkrag’s attorneys, and in a follow up
email the first respondent was referred to the Security by Means of Movable
Property Act 57 of 1993. A copy of the relevant section (section 2(1)(b)) was
attached.

[13] Section 2(1)(b) of the Security by Means of Movable Property Act 57 of 1993
provides that movables that are subject to an Instalment Sale Agreement are
not subject to the landlord’s tacit hypothec.

[14] On 29 September 2022 Koopkrag sent an email to the first respondent
advising as follows:
“The issues between your client and Ms Schaal has nothing to do with the
agreement between Koopkrag and Ms Schaal. The vehicle you have had
confiscated is the property of Koopkrag until the final payment is made, that
hasn’t happened yet, so it is still our vehicle. My concern in this instance is
for the interests of Koopkrag only. I/We have no interest of what Ms Schaal
does or does not do in her private life.
I totally agree, from the little I know, that Ms Schaal is in the wrong as far as
her debt to her previous landlord is concerned but so is confiscating our
vehicle. A simple check on N atis would have confirmed that the vehicle has
a title holder and that would normally indicate that it is still financed. This
obviously wasn’t done? Furthermore, confiscating the vehicle continued
even after we confirmed (including a copy of the registration document) that
the vehicle is currently financed by us and a vehi cle financed under a Hire
Purchase Agreement is clearly excluded from a landlord’s tacit hy pothec.
Are you suggesting I appoint our attorneys to represent us in this matter?”

[15] There was no response until after the sale in execution had taken place
which was on 11 October 2022 . On 11 October 2022 the first respondent
wrote to Koopkrag in the following terms:
“1. You claim that your corresponden ce was ignored is denied.
2. You were informed of the situation and the legal process followed.
3. The vehicle was sold on auction and the sheriff needs to proceed with
the distribution;
4. Should you fail and/or refuse to provide the final settlement before the
close of business today we hold instructions to proceed with a High
Court application against Koopkrag for the necessary relief and punitive
costs will be asked.
5. We will further ask the court to make a negative inference on your
failure and order that there is no settlement amount outstanding and
that the papers should be provided to the sheriff .
6. We trust the above to be in order and await the final settlement herein.”

[16] The aforesaid was a response to Koopkrag’s letter of even date. On 11
October 2022 Koopkrag wrote to the first respondent advising:
“I refer you to all my previous emails in this regard which you have obviously
chosen to ignore. This is our vehicle in terms of a legally binding Hire
Purchase Agreement and will remain so until the final payment is made.
Currently Ms Schaal is up to date with her commitments in this regard. We
have no right to unilaterally cancel the said agreement as the terms and
conditions of the agreement are currently being met. So, unless you can
provide me with Ms Schaal’s written permission to sell our vehicle and to
cancel our current Hire Purchase Agreement, we have nothing further to
discuss. As mentioned previously the matter was discussed with our
attorneys, should we not receive a response to this email before the end of
business today I will be referring the matter to them.”

SECTION 2(1)(b) OF ACT 57 OF 1993
[17] The averment by the first respondent to Koopkrag that the vehicle had been
attached in terms of a rent interdict needs to be analysed as it induced a
train of events resultin g in the current proceedings. Sec 31 of the
Magistrates Court Act permits a summons for arrear rental to be
accompanied by an automa tic rent interdict, which can be sought and
obtained ex parte . That would ent itle the Sheri ff to attach but not remove or
sell the invecta et illata on the rental premises . For that to occur further steps
are r equired, e .g. the posting of security . The aforesaid averment conveyed
this state of affairs to Koopkrag.

[18] As the v ehicle is subject to an instalment sale, the vehicle could however not
be attached . Section 2(1) of the Security by Means of Movable Property Act
57 of 1993 reads as follows:
“(1) Notwithstanding anything to the contrary in the common law or in any
other law, movable property –
(a) …

(b) to which an instalment agreement, as defined in section 1 of the
National Credit Act, 2005 (Act 34 of 2005), relates,
shall not be subject to a landlord’s tacit hypot hec.”

[19] The only case relating to this section is Janse van Rensburg v Mahu
Exhaust CC and Another 2014 (3) SA 431 (NCK). In that particular case
the question was whether an agreement where deferred interest was not
paid in the normal course as with a credit agreement, but only in the event of
default, still fell within the ambit of the section. The following is stated at
paragraph [35]:
“It is inconceivable what relevance the issue of interest could have in the
legislature’s outspoken desire to exclude certain movable property from a
landlord’s tacit hypothec. What would clearly be relevant is the issue of the
ownership and possession of the movable property, pending final payment,
and not whether it is the subject of an agreement in terms of which interest is
or may become payable.”

[20] In the correspondence between the first respondent and the appellant the
first respondent mooted a distinction excluding the application of the
aforesaid section from the motor vehicle in question. It was later stated by
the first respondent that the vehicle was not attached by virtue of the rent
interdict, but because of a default judgment.

[21] The appel lant made much of th e correction of what it termed a
misrepresentation as to the basis for the attachment. A re nt interdict
attachment does not convey that judgment has been granted in resp ect of
the summons for arrear rentals . Koopkrag’s rights are p rotected by statute
as th e vehicle is not subject to the landlord’s tacit hypothe c.

[22] An attachment af ter judgment w ould be valid, b ut the title holder had to
assert its claim to ownership to the sheriff and the sheriff then would
commence interpleader proceedings by issuing an interpleader summons -
Sec 69 of the Magistrates Court Act .

[23] The fact that the motor vehicle was the subject of an Instalment Sale
Agreement indicates that ownership was not vested in the person who was
in possession of the vehicle. The sheriff and the first respondent were made
aware of the claim to ownership by Koopkrag before the execution sale.
What could be attached for a sale in execution could not include property of
third parties.

[24] The express averment by the first respondent that the vehicle had been
attached in terms of a rent interdict, combined with the fact that the vehicle is
subject to an Instalment Sale Agreement, is the clearest indicator that the
vehicle was not available for sale in exec ution for the debt of Ms Schaal in
terms of the tacit landlord’s hypothec.

[25] Having been advised that the vehicle was attached in terms of a rent
interdict, Koopkrag was entitled to assert its rights in terms of section 2(1)(b)
of Act 57 of 1993 and did assert such rights.

[26] The fact that this av erment was incorrect and had lulled Koopkrag into a
false sense of security cannot be discounted. Had Koopkrag been advised
that the attachment was pursuant to a default judgment , Koopkrag would
have the information necessary for it to prevent the auction.

[27] The focus then shifts to the sheriff to assess whether she acted law fully.
She was timeously advised of Koopkrag’s claim to ownership and was
provided with the registration certificate of Koopkrag to indicate that the
vehicle that she had attached is not the property of Ms Schaal.

[28] As the judgment upon which the sheriff executed was a Magistrates’ Court
judgment , Rule 42(2) of the Rules under the Magistrates’ Court s Act, 32 of
1944 applies :

“(2) Where the movable property sought to be attached is the interest of the
execution debtor in property pledged, leased or sold under a
suspensive conditio n to or by a third person , or is under the
supervision or control of a third person –
(a) Attachment shall be effected by service by the sheriff on the
execution debtor and on such third person of notice of the
attachment with a copy of the warrant of execution, which service
may be effected as if such notice was a summons : Provided that
where service cannot be effected in any manner prescribed the
court may make an order allowing service to be effected in the
manner stated in the order; and

(b) The sheriff may upon exhibiting the original of such warrant of
execution to the pledgee, lessor, lessee, purchaser, seller or such
other third person enter upon the premises where such property is
and make an inventory and valuation of the said property.”

[29] Notice of the attachment and a copy of the warrant of execution had to be
given to Koopkrag as title holder - the third person envisaged in Rule 42(2).

[30] In Absa Bank Limited v Van Eeden and Others 2011 (4) SA 430 (GSJ),
Willis J (as he then was) stated the following at paragraph [17]:
“Mr Meyer, who appeared for the applicant, submitted that a plain reading of
this Rule (Rule 42(2) quoted above) was that the sheriff was obliged to effect
service of the notice of attachment and warrant of execution on the
applicant, and only once the original warrant of execution had been shown to
the applicant could the sheriff proceed to attach the property. I agree.”

[31] The applicant in question was the title holder, i.e. the financier who had
retained ownership pending final payment of the debt due in terms of an
Instalment Sale Agreement. The court was also referred to section 68(3) of
the Magistrates’ Court s Act, which provides that the sheriff may attach and
sell in auction – “the interest of the execution debtor in any movable property
belonging to him and pledged or sold under a suspensive condition to a third
person, and may also sell the interest of the execution debtor’s property,
movable or immovable l eased to the execution debtor or sold to him under
any hire purchase contract or under a suspensive condition” . This s ubsection
however does not refer to the residual ownership interest of a titl e holder but
of the e xecution debtor, where applicable.

[32] In this matter the sheriff did not comply with Rule 42(2) by giving notice of
the sale to Koopkrag as title holder.

[33] Interpleader claims in the Magistrates’ Court are governed by Rule 44. The
Rule distinguishes between a third party in possession of property to which
two or more persons lay clai m and the sheriff in the same scenario. In the
first scenario the third party has to issue a third-party summons calling upon
the claimants to appear and to state the nature and the particulars of their
claims and to have their claims adjudicated (Rule 44(1)(a) of the Magistrates’
Court Rules).

[34] However, where the person in possession of property is the sheriff , who has
attached the property in execution of any process of the court, and where
any person other than the execution debtor makes a claim to the property,
the sheriff shall require from such claimant to lodge an affidavit in triplicate
with the sheriff within 10 days setting out the identity of the claimant and the
nature and grounds of his claim, substantiated by relevant evidence. The
sheriff as stakeholder is then required to issue the interpleader summons.

[35] It is apparent that Rule 44(2) is the source of the sheriff ’s contention that
Koopkrag had to file an affidavit.

[36] When Koopkr ag did not file the affidavit in question, but provided the sheriff
with registration documents, the question arises whether the absence of an
affidavit envisaged by Rule 44(2) would constitute grounds upon which the
sheriff could proceed with the sale in execution. This question raises a
constitutional consideration arising from sec 25 of the Constitution – i.e.
whether the sheriff could pass good tit le or whether the sale is tainted with
illegality. This issue involves the applicability of sec 7 0 of the M agistrates
Court Act , which is discussed below.

[37] Regardless of whether Koopkrag had filed an affidavit or not, it is apparent
that the sheriff could not proceed with the auction unless he had given prior
notice to Koopkrag so that it could take steps to protect themselves. In this
instance, the sale had already taken place by the time Koopkrag w as told
that the property was attached in terms of a court order, rather than a rent
interdict.

[38] Even in terms of Rule 44(2) the sheriff would not be the arbiter of which party
is entitled to have the property sold in execution. That depends on the
outcome of the interpleader proc eedings and is a court function.

[39] If the sheriff , without having received an affidavit as envisaged by Rule 44(2)
proceeds with an auction without notifying the claimant of the date of the
auction, the auction proceeds at the sheriff ’s risk.

[40] In the Absa Bank v Van Eeden case referred to supra, the court noted that
it is a matter of simple enquiry to determine on the eNaTIS system whether a
particular motor vehicle has a title holder and an owner (the latter referring to
the person utilising the vehicle on a day to day basis). The cost of such an
enquiry is minimal (approximately R60.00) and such an expense is not
unduly onerous in ascertaining whether an attached motor vehicle could be
sold at auction or not. In this instance the sheriff did not make such an
enquiry, but Koopkrag did provide the sheriff with proof of its title.

SECTION 69 AND 70 OF THE MAGISTRATES’ COURT S ACT
[41] Section 69 of the Magistrates’ Court s Act governs interpleaders in the
Magistrates’ Court. What is apparent is that the sheriff would issue an
interpleader summons to determine disputed claims to property under
attachment. It is this section which is also echoed in the provisions of
Regulation 44. What is apparent from the process is that the sheriff is
notified of competing claims, calls for an affidavit and then issues an
interpleader summons which will be determined in court proceedings. The
implication of not advising Koopkrag of the d ate of the auction is that
Koopkrag was not alerted to the urgency in it supplying an affidavit to the
sheriff . The failure to comply with the notice requirement in Rule 44 and as
echoed in the Absa v Van Eeden judgment is that the owner of the vehicle
was precluded from taking steps to protect a depr ivation of property which
could be seen as irrational when viewed from the vantage point of section 25
of the Constitution.

[42] Section 69 of the Magistrates’ Court s Act reads:
“(1)(a) Where any person, not being the judgment debtor makes any claim
to or in respect of any property attached or about to be attached in
execution under the process of any court, or to the proceeds of such
property sold in execution, his claim shall be adjudicated upon after
issue of a summons in the manner provided by the rules.
(b) Upon the issue of such summons any action which may have been
brought in any court whatsoever in respect of such property shall be
stayed and shall abide the result of the proceedings taken upon such
summons.”

[43] The appellant is taken to task by the sheriff for not issuing or providing the
sheriff with an affidavit in support of the claim to ownership. While this
affidavit might have been a requirement for purposes of initiating interpleader
proceedings, the sheriff , with knowledge of the title of the appellant arising
from the registration certificate, would act at her own peril if she proceeds
with a sale in execution without notifying the title holder of the date of the
auction. That would trigger the urgency in the need for filing of an affidavit.
The failure by the sheriff in this regard is a full explanation for the absence of
an affidavit in support of the appellant’s claim to ownership.

[44] The question that arises is where the sale in execution leaves the purchaser
of the motor vehicle, in this instance Mr Pather. Section 70 of the
Magistrates’ Court s Act purports to govern the principle that a sale in
execution gives good title. It reads:
“A sale in execution by the messenger shall not, in the case of movable
property after delivery thereof or in the case of immovable property after
registration of transfer, be liable to be impeached as against a purchaser in
good faith and without notice of any defect.”

[45] There is no evidence before the court indicating that Mr Pather does not fit
the description of “a purchaser in good faith and without notice of any
defect” .

[46] However, this was not due to the absence of such information regarding the
appellant’s claim to title. . The sheriff was well -aware of the appellant’s claim
to ownership and was merely awaiting an affidavit in support thereof. Yet,
he proceeded with an auction without notifying the appellant of the date of
the auction.

[47] The question is whether a deprivation of property rights of the appellant in
such circumstances could be branded as arbitrary and whether the
Constitution will protect a sale in terms of section 70 of the Magistrates’
Courts Act in such circumstances.

[48] This issue has served on two occasions before the Supreme Court of
Appeal.

[49] In Campbell v Botha and Others 2009 (1) SA 238 (SCA) the court had to
consider the consequences of a sale in execution where the judgment and
execution upon which the sale was based was found to be void. The SCA
found that there can be no sale in execution without a judgment and an
attachment in execution of that judgment. If the judgment is void and there
is no attachment (because neither the warrant nor the notice of attachment
was served on or brought to the notice of the owner), the subsequent sale of
the property is not a sale in execution but merely a purported sale in
execution. Such a sale is not protected by section 70 of the Magistrates’
Courts Act and the owner retains ownership of the property (see Campbell v
Botha at paragraphs [11], [13], [15], [18] to [19] and [20] (at 242D, 243E -F,
245A -B and 245D -E).

[50] In Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA) the
Court dealt in similar circumstances with the consequences of the sale in
execution. This judgment brings the validity of the subsequent sale in line
with Constitutional imperatives arising from section 25 of the Constitution.
The SCA held that if a sale in execution was null and void because i t violated
the principle of legality, the sheriff had no authority to transfer ownership to
the purchaser and would therefore not acquire ownership despite registration
of the property in his or her name. On the facts, the first respondent was
found theoretically to be entitled to recover the property in vindicatory
proceedings – see paragraphs [24] to [25] at 129G to 130G.

[51] In a concurring judgment Cloete JA expressed the Constitutional basis for
such finding. He found that at common law a sale in execution was void for
want of compliance with an essential formality. However, non -compliance
with non -essential formalities did not have that result. Cloete JA was of the
view that section 70 of the Magistrates’ Courts Act should be interpreted as
being to the same effect as the common law, except that a sale in execution
in a Magistrates’ Court could be impugned even for want o f non -essential
formalities where the purchaser did not act in good faith or had notice of the
non-compliance. Further, he found that section 70 should not be interpreted
as protecting a sale which is void, as this conflicts with the basic principle of
legality and section 25 of the Constitution – see paragraph [46] and [47] (at
141D -E and 142B -D).

[52] It is necessary to integrate the consequences of section 2(1)(b) of Act 57 of
1993, the failure by the sheriff to advise the appellant of the date of the
auction as required by law and the provisions of section 70 of the
Magistrates’ Courts Act. If the position of the appellant is the sole
consideration, then the position can be summarised as follows:
52.1 As the appellant has retained ownership and is the title holder in
terms of the registration certificate on the Natis System, the motor
vehicle is not susceptible to attachment under the landlord’s tacit
hypothec. This is the consequence of section 2(1)(b) of Act 57 of
1993;
52.2 The reason why that provision is in place is because a vehicle which
is subject to an instalment sale as envisaged by that section, is a
motor vehicle in which the possessor of the vehicle is not the owner.
This section protects the property rights of the financier as title
holder or owner of the motor vehicle;
52.3 Once judgment has been granted, the question arises whether the
position changes if that same motor vehicle were now to be attached
in execution. It could be argued that section 2(1)(b) covers the
period prior to judgment. Assuming this to be the case, once
judgment has been granted, the attachment of the motor vehicle
does not fundamentally differ in law from the position prior to
attachment. It is still not the motor vehicle of the judgment debtor,
but of the title holder. In this scenario the attach ment would be
valid. However, interpleader proceedings would resolve a disputed
claim to the motor vehicle once attached;
52.4 The need for the sheriff to give notice to the title holder of the date of
the auction comes into sharp focus in this context. Only if notified of
the date of the auction can the title holder be expected to take steps
necessary to protect its property rights. To preserve the l egality of
the sale and the transfer of title notice to the owner/title holder is
necessary.It requires the property owner to be notified of the
impending risk to its property once sold at auction;
52.5 If the owner is not notified of the date of the sale and cannot
reasonably be expected to take the steps necessary to initiate
interpleader proceedings by filing an affidavit with the sheriff in terms
of Rule 44(2) of the Magistrates’ Courts Act, then the deprivation of
property would be arbitrary. Arbitrary deprivations of property
infringe the principle of legality and section 25 of the Constitution. In
such circumstances the sale of property in execution can be
impugned and overturned despite the purch aser being bona fide and
without notice of any defect in title (section 70 of the Magistrates’
Courts Act);
52.6 From the above analysis it is apparent that the failure by the sheriff
to notify the appellant of the date of the auction has resulted in a n
auction sale that falls to be set aside.

[53] Despite Mr Pather being a bona fide purchaser who purchased the vehicle in
the expectation of obtaining good title, the sale of the motor vehicle in
circumstances as set out above does not make it a protected sale. It offen ds
the principle of legality and has purported to deprive the appellant of property
in an arbitrary manner in breach of section 25 of the Constitution.

[54] The sale in execution therefore falls to be set aside.

[55] I will now deal with two specific defences raised on behalf of the first
respondent. The first was a contention that the deponent of the applicant
was not authorised to depose to the affidavit.

[56] The authority to institute legal proceedings has been determined by the SCA
in Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA).
The SCA held:
“It is irrelevant whether Hanke had been authorised to depose to the
founding affidavit. The deponent to an affidavit in motion proceedings need
not be authorised by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorised. I n the present case the proceedings were instituted and
prosecuted by a firm of attorneys purporting to act on behalf of the
respondent. In any event, rule 7 provides a procedure to be followed by
respondent who wishes to challenge the authority of an attorney who
instituted motion proceedings on behalf of an applicant. The appellants did
not avail themselves of the procedure so provided. (See Eskom v Soweto
City Council 1992 (2) SA 703 (W) at 705 C -J).”

[57] What needs to be established is the authority to institute the proceedings by
the juristic person in question. That would usually be established by means
of a resolution and the authority of the attorneys would be established by
means of the filing of a power of attorney. These are matters dealt with by
Rule 7. They are dealt with extra -curially.

[58] In Unlawful Occupiers of the School Site v City of Johannesburg [2005]
2 All SA 108 (SCA) at paragraphs [14] to [16], Brand JA stated:
“[14] At the hearing of the appeal, counsel for the appellants conceded that
she could not support this ground of appeal. I think the concession was
fairly made. The issue raised had been decided conclusively in the
judgment of Flemming DJP in Eskom v Soweto City Council 1992 (2)
SA 703 (W), which was referred to with approval by this court in Ganes
and another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) 624I -625A.
The import of the judgment in Eskom is that the remedy of a
respondent who wishes to challeng e the authority of a person allegedly
acting on behalf of the purported applicant, is provided for in rule 7(1).
The ratio decidendi appears from the following dicta (at 705D -H):
'The care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he was party to
litigation carried on in his name. His signature to the process, or when
that does not eventuate, formal proof of authority would avoid undue
risk to the opposite party, to the administration of justice and sometimes
even to his own attorney. ... The developed view, adopted in Court Rule
7(1), is that the risk is adequately managed on a different level. If the
attorney is authorised to bring the application on behalf of the applicant,
the application necessarily is that of the applicant. There is no need
that any other person, whether he be a witness or someone who
becomes involved especially in the context of authority, should
additionally be authorised. It is therefore sufficient to know whether or
not the attorney acts with authority. As to when and how the attorney's
authority should be proved, the Rule -maker made a policy decision.
Perhaps because the risk is minimal that an attorney will act for a
person without authority to do so, proof is dispensed with except only if
the other party challenges the authority. See Rule 7(1).'
And (at 706B -D):
'If the applicant had qualms about whether the 'interlocutory application'
is authorised by respondent, that authority had to be challenged on the
level of whether [the respondent's attorney] held empowerment. Apart
from more informal requests or enquiries, applicant's remedy was to
use Court Rule 7(1). It was not to hand up heads of argument, apply
textual analysis and make submissions about the adequacy of the
words used by a deponent about his own authority.'
[15] These remarks by Flemming DJP must be understood against the
background that rule 7(1) in its present form was only introduced by
way of an amendment in 1987. Prior to the amendment an attorney
was obliged to file a power of attorney whenever a summons was
issued in an action, but not in motion proceedings. The underlying
reason for the distinction, so it was said, was that in motion
proceedings there is always an affidavit signed by the applicant
personally or by someone whose authority appears from t he papers
(see e .g. Ex Parte De Villiers 1974 (2) SA 396(NC)). On the basis of
this reasoning, it is readily understandable why, before 1987, the
challenge to authority could only be directed at the adequacy of the
averments in the applicant's papers and pre -1987 decisions regarding
proof of authority should be read in that light.
[16] However, as Flemming DJP has said, now that the new rule 7(1)
remedy is available, a party who wishes to raise the issue of authority
should not adopt the procedure followed by the appellants in this
matter, i.e. by way of argument based on no more than a textual
analysis of the words used by a deponent in an attempt to prove his or
her own authority. This method invariably resulted in a costly and
wasteful investigation, which normally leads to the conclusion that the
application was indeed authorised. After all, there is rarely any
motivation for deliberately launching an unauthorised application. In
the present case for example the respondent’s challenge resulted in the
filing of pages of resoluti ons annexed to a supplementary affidavit
followed by lengthy technical arguments on both sides. All this
culminated in the following question: Is it conceivable that an
application of this magnitude could have been launched on behalf of
the municipality with the knowledge of, but against the advice of its own
director or legal services? That question can, I my view, only be
answered in the negative.”

[59] The reliance on Cullinan Holdings Limited v Lezmin , as referred to in
paragraph 30 of the judgment of the Court a quo is misplaced. That case
merely establishes the known principle that the institution of the proceedings
by the juristic person in question needs to be established, and not the
deponent. If the Cullinan Holdings case suggests anything other than what
is stated by the SCA in the Telecom Namibia case supra, then it is clearly
wrong.

[60] To recap, the issue of the authority to institute proceedings is not to be
confused with the authority requiring the deponent to be authorised. What
needs to be authorised is the institution of the proceedings and the attorneys
who have instituted those proceedings. As far as the deponent is
concerned, that is a choice of the attorney who would be required to identify
a deponent who has knowledge of the facts. That is the only requirement for
a deponent, and it is not a question of authority.

[61] The non -joinder of Ms Schaal was also rai sed as a defence. The court a quo
regarded her as an essential party beca use the appellant wanted to return
the vehicle to her. That is however no basis for joinder. The test for joinder is
whether Ms Schaal has a direct and substantive interest in the r elief being
sought. Applied to the facts th e question is whether the judgment could be
carried out without adversely affecting the interests of Ms Schaal.

[62] In Absa Bank Ltd v Naude NO and others1 the Supreme Court of Appeal
considered the issue of whether the non - joinder of creditors in an
application to set aside a business rescue plan was fatal to the subject -
matter of the litigation which may prejudice the party that has not been
joined. The court in Absa relied on Gordon v Department of Health, KwaZulu
-Natal2 where it was held that “if an order or judgment cannot be sustained
without necessarily prejudicing the interests of third parties that had not been
joined, then those third parties have a legal interest in the matter and must
be joined ”3.

[63] In casu, when applying the principle of non -joinder as enunciated by the
Supreme Court of Appeal in Absa4 it is apparent that Ms Schaal did not have
any direct and substantial interest in the matter and thus her being joined in
the proceedings was not necessary.

[64] If the application succeeds, then t he judgment will benefit her – i.e. if
Koopkrag were to restore her possession of the vehic le. If it fa ils, she is no
worse off as she is not in possession at present.

[65] The non -joinder defence has no merit and the court a quo erred in upholding
the defenc e.

COSTS
[66] The first respondent was remiss in mi sstating the facts to Koopkrag as set
out above. This mis statement brought Koopkrag under the wrong impression
regarding the basis for the attachment of the vehicle. Once the misstatement

1 Absa Bank Ltd v Naude NO and others [2015 ] ZASCA 97; 2016(6) SA 540(SCA) (‘Absa’) para 10.
2 Gordon v Department of Health, KwaZulu -Natal [2008] ZASCA 99; 2008(6) SA 522 (SCA) para 9.
3 Absa para10.
4 Ibid
was identified, the first respondent should have corrected the statement and
should have taken on the consequences of the misstatement . It failed to do
so. Rather it raised technica l defences and persisted in its position without
any recognition of the consequence s of its misstatement.

[67] Further, the first respondent conducted itself as aforesaid while being the
attorneys for the second re spondent . Normally the princi pal bears the
consequences of its agent ’s conduct. H owever, I take i nto account the fact
that the conduct of the first respondent was an error in the professional
sense . In the exercise of our discretion, as the first respondent is a party, the
costs of this error are not visited upon the second respondent. She is a lay
person and a pensioner.

[68] In the premises the following order is made:
1. The appeal is upheld w ith costs , including the costs of two counsel on
Scale C.

2. The costs of the appeal, includi ng the costs of the second respondent
on Scale B , are to be paid by the first and fourth respondents jointly
and severally, the one paying the other to be absol ved.

3. The order of the court a quo is set aside and replaced with the
following:
“1. The sale in execution held on 11 October 20 22 is set aside.

2. The third respondent is directed to return the Nissan Juke , with
registration number J[...] 8[...] B[...] G[...] , VIN number S[...] 1[...]
and engine number H[...] to the applicant at an address provided
by the applicant to the third respondent .

3. If the third respondent fails to deliver the vehicle within five days
of date of notification of this order , the sheriff is authorised to take
steps to give effect to this order, to attach and remove the
aforesaid vehicle wherever it is found , and to hand it to the
applicant at th e address provided by the applicant to t he sheriff.

4. The costs of the application , including the costs of the second
respondent, are to be paid by the first and fourth responde nts
jointly and severally, the one paying the ot her to be absolved.

5. The costs of the applicant shall include the costs of two counse l,
on Sca le C and the costs of the second respondent shall be on
Scale B ”.


J YENDE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I concur .

LABUSCHAGNE J
JUDGE OF THE HIGH COURT
Gauteng Division, Pretoria.

I concur .

N MAZIBUKO
Acting Judge of the High Court
Gauteng Division, Pretoria.

This judgment was prepared by JUSTICE YENDE ACTING JUDGE . It is handed
down electronically by circulation to the parties/their legal representatives by e -mail
and uploaded on C aselines electronic platform and by publication of the judgment to
the South African Legal Information Institute. The date for hand -down is deemed 14
February 2025.


Appearances:

Advocate for Appellant(s) : MP Van der Merwe SC
Appearing with : A A Basson

Instructed by: TIM DU TOIT & CO INC

Advocate for First Responden t(s): A VAN DER WESTHUIZEN
Appearing with: M COETZEE

Instructed by : TAUTE, BOUWER & CILLIERS INC




Advocate for Second Respondent’s: NC HARTMAN

Instructed by Second Respondent’s Attorneys: HOPGOOD ATTORNEYS INC

Heard: 31st January 2025

Delivered: 1 4 February 2025