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
(NORTHERN CAPE DIVISION KIMBERLEY)
Case No: CA&R34/23
In the matter between:
BRIDGE DEBT (PTY) LTD First Appellant
FLEMIX & ASSOCIATES INCORPORATED ATTORNEYS Second Appellant
and
MOTHIBI , LETHLOGONOLO PERCY Respondent
Neutral citation: Bridge Debt (Pty) Ltd and Another v Mothibi, LP (Case no:
CA&R 34/23) ( 14 March 2025)
Heard: 29 July 2024
Delivered: 14 March 2025
Coram: Mamosebo J et Nxumalo J
Summary : Appea l — Rule 51(3) of the Magistrates ’ Court s Rules. Jurisdiction
by consent of parties - section 45 of the Magistrates ’ Court s Act 32 of 1944 .
Judgment debtor not permitted to consent to jurisdiction in place other than
where resident or employed. Emolument s Attachment Order - Consent to
judgment or to judgment and an order for payment of judgment debt in
instalments – section 58 of the Magistrates’ Courts Act. Rescission of order by
Magistrate. Restoration of status quo ante and costs . Whether the Magistrate
erred in granting the order.
Reportable:
Circulate to Judges:
Circulate to Regional Magistrates:
Circulate to Magistrates: YES / NO
YES / NO
YES / NO
YES / NO
2
ORDER
(a) The appeal against order s 1,2,3,4 and 6 of the court a quo is dismissed;
(b) The appeal against order 5 of the impugned order is upheld in part and the
said order is substituted with the following:
“5. All the benefits that Bridge Debt obtained from the judgment granted
against the applicant under case number 8874/2012, are void ab initio
and the court orders that restitution is to be effected against Bridge
Debt within five (5) days of this order.”
(c) The appellant shall bear the costs of this appeal on an attorney and client
scale.
JUDGMENT
NXUMAL O J
INTRODUCTION
[1] On 18 May 2023 Magistrate K Padayachee granted an order in favour of
EDJ Attorneys who appeared on behalf of Mr Letlhogonolo Percy Mothibi,
against Experato (Pty) Ltd (now cited in the appeal as Bridge Debt (Pty)
Ltd) together with Flemix & Associates Incorporated in the following terms:
‘1. The late filing of the rescission application is condoned .
3
2. That the judgment granted against the applicant on 18 April 2012 under
Case Number 8874 /2012 is declared void ab initio and is hereby
rescinded.
3. The emoluments attachment order issued against the applicant under
Case Number 8874/2012 is declared void ab initio and hereby
rescinded .
4. The applicant is restored to his respective position status quo ante
before the judgment was granted against the applicant on or before the
18th of April 2012.
5. All benefits that the 1st and 2nd respondents obtained from the judgment
granted against the applicant under Case Number 8874/2012 are void
ab initio and the court orders that restitution is to be effected, jointly and
severally, the one paying the other to be absolved within five (5) day s
of this order.
6. Costs, including preparation and travelling, to be paid by the 1st and 2nd
respondents on a scale as between attorney and client .’
[2] The first appellant is Bridge Debt (Pty) Limited, a company with limited
liability, incorporated in te rms of the Laws of the Republic, with its
registered office; alternatively, principal place of business situate at Block
1[…] Boardwalk Office Park, 7 […] E[…] Street, Faerie Glen, Pretoria. The
second appellant is Flemix and Associates Incorporated Attorneys,
practicing from Ground Floor, Block C, Law Chambers, Menlyn Woods,
2[…] S[…] Avenue, Faerie Glen, Pretoria. The first and second appellant s
(collectively referred to as the appellants) filed a Notice of Appeal on 14
June 2023 as contemplated in Rule 51(3) of the Magistrates’ Court s Rules
impugning the decision of the Magistrate both on the facts and the law .
[3] The first appellant , Bridge Debt (Pty) Limited, has since abandoned its
appeal and did not participate in these appeal proceedings . In that case,
4
the order by Magistrate Padayachee remains valid and enforceable against
Bridge Debt.
[4] The grounds of appeal as appearing in the Notice of Appeal are that the
Magistrate erred in fact and in law in the following respect s:
Findings of fact
(1) That the second respondent [the appellant] admitted having made a
systematic practice of forum shopping or that there can be such a
conclusion based on an article, the author of which never deposed to
a confirmatory affidavit vis -à-vis the content of the article;
(2) That th e legal submissions by the applicant [EDJ Attorneys
Incorporated] regarding the alleged abuse can be given any weight
to, under circumstances where the submissions were copied and
pasted, and under circumstances where the attorney for the applicant
failed to file a confirmatory affidavit whatsoever;
(3) That the applicant never met the two witnesses that appear on the
consent to judgment under circumstances where such an averment
was also copied and pasted;
(4) That the applicant became aware that the judgment wa s void during
30 March 2022, as opposed to being coerced by his attorneys and
Gorr Assist (Pty) Ltd in order to circumvent Rule 49(8);
(5) That the second respondent’s intent with section 45 was to prejudice
the applicant;
(6) That the second respondent litigate s in a manner aimed at increasing
litigation costs and exposing the applicant to such costs while the
judgment acknowledges that the applicant’s attorneys used copied
and pasted affidavits to advance a case for a certain Gorr Assist (Pty)
Ltd, not the appl icant/debtor;
(7) That the second respondent chose to oppose the rescission as
opposed to merely the restitution and costs portion;
5
(8) That there exists any rescindable benefits against the second
respondent;
(9) That the second respondent’s affidavit contained hearsay allegations;
(10) That the second respondent’s affidavit contained scandalous and
irrelevant allegations;
(11) That the second respondent is liable for restitution and costs jointly
and severally.
Findings of law
(12) That the evidence under paragraph 86 of the founding affidavit may
be admitted in accordance with sections 3(1)(a) and (b) of the Law of
Evidence Amendment Act, 45 of 1988;
(13) That the applicant was entitled to restitution ipso facto, once the
rescission was granted;
(14) That restitution is possible against the second respondent who
received no rescindable benefit;
(15) That the applicant satisfied the requirements under Rule 49(8) of the
Magistrates Court Rules; and
(16) That a de bonis propriis costs order was warranted 10 years after the
fact and under cir cumstances under which the application was
brought by EDJ Attorneys.
[5] This appeal, by Flemix & Associates Incorporated Attorneys, (hereinafter
referred to as the appellant) pivots on two issues, namely, whether
Magistrate Padayachee had erred whe n granting the order restoring the
parties to their respective positions before the judgment was granted on 18
May 2023 and in directing the appellants to pay the costs of the application
6
on the scale as between attorney and client including preparation fees
jointly and severally, the one paying the other to be absolved.
THE RECORD
[6] The record of proceedings in the court a quo is incomplete. The transcribed
record only pertains to the Rule 52(2) of the Magistrates ’ Court s Rules
application where the authority of EDJ Attorneys Incorporated to act on
behalf of the respondent, Mr Mothibi, in the rescission application , was
challenged. Counsel agreed that the appeal court would be able to
determine the matter on the available papers and neither party would be
prejudiced provided the appeal focuses on only two grounds, namely,
whether the Magistrate was correct in granting restitution jointly and
severally in favour of the respondent and whether the Magistrate had erred
in granting a c ost order against the appellant . The Court allowed counsel
to proceed and argue the appeal.
BACKGROUND FACTS
[7] Bridge Debt is a credit provider and through its predecessor , Experato (Pty)
Ltd, advanced money to the respondent pursuant to a loan agreement
within the contemplation of the National Credit Act 34 of 2005 (NCA). The
respondent is a major male senior typist, employed as such by the South
African Police Service, situate at 1 Commissioner Street, Johannesburg.
At all material times hereto, the respondent resided at Mulbarton,
Johannesburg South.
[8] The respondent failed to meet his obligations in terms of repayment and
fell into arrears . On 13 April 2012 t he appellant, as Bridge Debt’s attorneys
in the proceedings in the magistrates’ court for the district of Francis Baard
held in Kimberley , obtained the judgment and order based on the consent
to jurisdiction in terms of s 45 of the Magistrates ’ Court s Act 32 of 1944
(MCA) , to the jurisdiction of the Magistrates Court, Pre toria, as per
Annexure AA7. The consent reads:
‘The parties mentioned above [Experato (Pty) Ltd (plaintiff) and Mr Letlhogonolo
Percy Mothibi (defendant)] hereby agree that the Magistrates Court for the district
of PRETORIA held at PRETORIA shall have jur isdiction in the proceedings of
7
Experato (Pty) Ltd (hereinafter referred to as “plaintiff”) is about to institute against
Mr L Mothibi (hereinafter referred to as the “defendant”) for the judgment in terms
of s 58 of Act 32 of 1944 in respect of monies in the amount of R17838.20 (One
Seven Eight Three Eight Rand and Two Zero Cents) lent and advanced by the
plaintiff to the defendant at the latter’s special instance and request together with
contractual interest thereon at 60.00% per annum from handover to d ate of final
payment and legal costs on Attorney and Client scale.’
[9] The consent to judgment, offer to pay debt in instalments and Emolument s
Attachment Order in terms of s 581 and 65J of the MCA was purportedly
signed in the presence of two witnesses on the same day, 13 April 2012,
in Johannesburg, as per Annexure AA8. Section 65J (1)(a) of the MCA
enjoined the judgment creditor (Experato (Pty) Ltd and/or Bridge Debt (Pty)
Ltd to cause an emolument s attachment order to be issued from the court
of the district in which the judgment debtor resides, carries on business or
is employed.
[10] Notwithstanding the above , the appellant obtained judgment, also referred
to as an Emolument s Attachment Order (EAO), on 18 April 2012 against
Mr Mothibi in Kimberley, a distance of approximately 503 km from his
residence or workplace, for a judgment debt of R17 838.20 and costs on a
scale as between attorney and client in the amount of R3 202.02 . In
addition, the appellant succeeded in obtaining interest at 60% per annum
where the monthly repayment would be R600.00.
1 ‘58. Consent to judgment or to judgment and an order for payment of judgment debt in
instalments
(1) If any person (in this section called the defendant), upon receipt of a letter of demand or
service upon him of a summons demanding payment of debt, consents in writing to
judgment in favour of the creditor (in this section called the plaintiff) for the amount of the
debt and the costs claimed in the letter of demand or summons, or for any other amount,
the clerk of the court shall, on the written request of the plaintiff or his attorney
accompanied by -
(a) if no summons has been issued, a copy of the letter of de mand; and
(b) the defendant's written consent to judgment ,
(i) enter judgment in favour of the plaintiff for the amount of the debt and the costs for
which the defendant has consented to judgment; and
(ii) if it appears from the defendant's written consent to judgment that he has also
consented to an order of court for payment in specified instalments or otherwise of
the amount of the debt and costs in respect of which he has consented to judgment,
order the defendant to pay the judgment debt and costs in specified instalments or
otherwise in accordance with this consent, and such order shall be deemed to be an
order of the court mentioned in section 65A (1).
(2) The provisions of section 57 (3) and (4) shall apply in respect of the judgment and court order
referred to in subsection (1) of this section. ’
8
[11] On 09 June 2022, Mr Mothibi’s attorneys (EDJ Attorneys Incorporated ),
lodged an application in terms of section 36(1)(b) of the MCA and rule 49(8)
of the Magistrate s’ Courts Rules seeking order s in the following terms: (a)
that the court grants condonation for the late filing of its application; (b) that
the court rescind the judgment granted against the respondent, Mr Mothibi ,
on or about 18 April 2012, under case number 8874/2012 ; (c) that the
emolument s attachment order granted against him be rescinded ; (d)
restoring the parties to their respective positions status quo ante (i.e.,
before the judgment was granted on or about 18 April 2012 ), (e) declaring
that all benefits obtained by the appellants from the impugned judgment
are null and void ab initio and that restitution is to take place, jointly and
severally , the one paying the other to be absolved; (f) directing the
appellants to pay the costs of the application on the scale as between
attorney and client jointly and severally, the one paying the other to be
absolved, such costs to includ e preparation and travelling costs.
[12] Section 36(1)(b) of the MCA, expressly stipulates as follows; that:
“36 What judgments may be rescinded
(1) The court may, upon application by any person affected thereby, or, in cases
falling under paragraph (c), suo motu -
(a) . . .
(b) rescind or vary any judgment granted by it which was void ab origine or
was obtained by fraud or by mistake common to the parties;
(c) . . .
(d) . . . ”
[13] It is common cause that the loan amount and interest have since been paid
in full. It is also significant that the appellants did not oppose the application
for the rescission of the judgment as well as the Emolument s Attachment
Order (EAO). Of more significance is that gleaning from the section 45
consent to jurisdiction, annexed as ‘AA7’ , the respondent had consented
to the jurisdiction of Pretor ia and not the Kimberley Magistrates Court. The
appellant conceded, correctly so in my view, that the Kimberley Court
9
lacked the required jurisdiction.
First ground of appeal: Restitution
[14] In its Notice of Appeal, the appellant maintained that no rescindable
benefits exist against it; thus, the trial court erred in its finding that it is liable
for restitution and costs jointly and severally; that Mr Mothibi was entitled
to restitution ipso facto , once the rescission was granted and that restitutio n
is not possible against the appellant who received no rescindable benefit.
[15] The appellant contends i n paragraph 13.4 of its answering affidavit , that it
was already punished by the Law Society for its “incorrect interpretation”
of the law in the 15 0 000 cases . In paragraph 25 of the appellants’
answering affidavit, the appellant and Bridge Debt aver red as follows,
without more:
“PARAGRAPHS 86 TO 87 THEREOF :
25.
25.1 The applicant’s [Mothibi’s] attorneys and their benefactor are once again
defaming the second respondent by stating that we deliberately made sure
the courts granting the judgments were not the courts that had jurisdiction.
25.2 It’s very convenient for the applicant’s attorneys to mention 9 outlier cases,
out of more than 150 000 active ones that were open at the time in 2012.
25.3 I reiterate, that we never acted mala fide and these outlier cases are
merely being mentioned to advance a convoluted narrative.”
[16] The appellant argued that even if the trial court would have found that the
nine cases that it prosecuted in the incorrect jurisdiction show a systemic
practice of forum shopping or a mala fide intention , those were only nine of
the 150 000 and would not support such a finding . According to the
appellant, the trial court placed heavy reliance on a judgment annexed as
“LP5” to the reply remarking that it was identical to Mr Mothibi’s rescission
application. However, in the said LP5 , so the argument went, no restitution
order was made.
[17] The appellant is adamant that it did not receive any rescindable benefits
from Bridge Debt (Pty) Ltd and that it was merely paid for services
10
rendered. Mr Muller, for the appellant, submitted that the natural effect will
be that the rescindable benefits that the judgment creditor obtained would
be reversed but that it should not befall the attorney but the client. In this
instance, the effect should be on the microlender, being Bridge Debt, and
not on Flemix and Associates Inc.
[18] The contention on behalf of Mr Mothibi was that the appellant knew or
ought to have known that obtaining a judgment in a court that is 503
kilometres away from his correct district of jurisdiction is unlawful and
unethical. That the opposing parties did n ot deny the veracity of the listed
debtors in the impugned paragraph. That it does not matter if it is only nine
cases listed because the whole point was to show how the appellant has
made a system atic practice of forum shopping. That this is the reason why
the appellant was found guilty by the Law Society.
[19] The date of commencement of the Courts of Law Amendment Act, 7 of
2017 is 01 August 2018 and remained in force until 11 March 2022. The
purpose of the Act was, among others, to amend the Magistrates ’ Courts
Act, 1944 , inserting definitions and to regulate the rescission of judgments
where the judgment debt has been paid; to further regulate jurisdiction by
consent of parties; to amend the Sup erior Courts Act, 2013, so as to
provide for the rescission of judgments by consent and the rescission of
judgments where the judgment debt has been paid.
[20] The trial court relied on MBD Securitisation (Pty) Ltd v Booi2 in granting the
restitution or der. The facts in Booi are almost similar to the facts in casu .
The main difference is unlike in casu where the firm of attorneys
responsible for obtaining the judgment was cited as a party, the attorneys
were not cited in Booi.
[21] A contention by the appellant is that Mr Mothibi co uld have just asked the
firm for a rescission, and he would have been furnished with a copy of the
consent letter to have the judgment reviewed in terms of the Courts of Law
Amendment Act . There was no reason for him to litig ate, 10 years later,
2 2015 (5) SA 450 (FB)
11
after the repeal of the Courts of Law Amendment Act, through a debt
restructuring company, Gorr Assist (Pty) Ltd , who intends to mulct the firm
with fees following the remarks by Desai J in University of Stellenbosch
Legal Aid Clinic and Others v Minister of Justice and Correctional Services
and Others3 of the book debt of over R1.5 billion collected by the appellant .
[22] In Baker v Probert4 the Appellate Division definitively pronounced that a
claim for restitution is to be regarded as a distinct contractual remedy —
see also the unreported judgment in Zimbabwe Consolidated Diamond
Company v Smit Investment Holdings SA (Pty) Ltd t/a Gecko Projects5.
The trial court could not have found, without more, that there w ere
rescindable benefits to the appellant justify ing an order jointly and severally
with Bridge Debt (Pty) Ltd. It follows, therefore, that the appeal on this leg
stands to succeed.
[23] Lest I be seen to be condoning this behaviour by the appellant, who in the
first place was responsible for the enrolment of the matters in incorrect
jurisdictions, the principle emphasised by the Constitutional Court in
University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice
and Correctional Services and Others6 bears repeating:
‘. . . It has been established in the jurisprudence of this court that execution of
court orders is part of the judicial process. It requires judicial oversig ht. Though
previous cases dealt with debtors' homes, the principle underlying them was that
judicial oversight of the execution process against all forms of property is
constitutionally indispensable. Clearly then, the fundamental principles relating to
the proscription against self -help flowing from the s 34 right of access to courts
apply, with equal force, to the execution process. I would therefore affirm the
breadth of the High Court's approach.’
The Constitutional Court went on to say :7
‘An emoluments attachment order is clearly burdensome. It severely constricts
3 2015 (5) SA 221 (WCC).
4 1985 (3) SA 429 (A) at 438I – 439B
5 (3105/2022) [2023] ZAECQBHC 48 (5 September 2023) para 17.
6 2016 (6) SA 596 (CC) para 129
7 Ibid para 131
12
the autonomy of the debtor to decide how she will pay off the debt. It is also
inflexible as it does not adapt to the debtor's changing circumstances from week
to week. It goes dire ctly off a debtor's wages — and these wages will often form
the means for the debtor's day -to-day survival. These are all -important
considerations to be borne in mind when deciding whether an emoluments
attachment order should be granted.8 What is more, a debtor's personal
circumstances may well have changed in the interim between when a judgment
debt is entered and ordered to be paid in instalments and when an emoluments
attachment order is sought. It is, therefore, crucial that these considerations are
taken into account at the time the emoluments attachment order is sought. ’
Ground 2: Costs
[24] In as far as costs are concerned, the appellant argues from the premise
that it was not a party when the rescission application was brought.
However, based on th e averment that it had acted mala fide when obtaining
the judgment coupled with the remarks by the Constitutional Court, more
particularly, where the Con stitutional Court said9: ‘Though the matter is
difficult, I am inclined to issue a prospective order only. It is true that the
grievous effect of this is that past emoluments attachment orders,
unscrupulously procured or issued, will continue to be operative, unless
individually challenged.’ It is now targeted by the restructuring companies.
[25] It rem ains inexplicable how the appellant, despite the respondent’s consent
to judgment , with Pretoria as the Court with jurisdiction, opted to bring the
application in Kimberley, a distance of some 503km’s from Mr Mothibi’s
residence or place of work. The costs have already been incurred and it is
plain that the appellant fails to appreciate that it has effectively denied Mr
Mothibi access to court and as remarked by Cameron J in the University of
Stellenbosch matter , the grievous effect of the unscrupulously procured or
issued emolument s attachment orders will continue to operate unless
challenged.
[26] The appellant seems to argue that , because there is a fee agreement
8 [A decision that illustrates the practical operation of emoluments attachment orders is MBD
Securitisation (Pty) Ltd v Booi [2015] ZAFSHC 134, 2015 (5) SA 450 (FB) especially at paras
29 and 41]
9 Ibid para 159
13
between Mr Mothibi and Gorr Assist in the Rule 52(2) application , Mr
Mothibi is not entit led to costs. That cannot be correct. The action was
against him and not Gor r Assist. He is a party against whom the order was
obtained. Ms Jordan is an attorney and director of the appellant . She ought
to have known that obtaining judgment in Kimberley wa s wrong , but
continued to do so anyway. Any attorney would know that the correct
charge for a s 58 consent to judgment at the time was R241.75 but the
legal fees charged were R3 202.02. Arguably, t his was an exorbitant fee.
(See Pheko and Others v Ekurhule ni City10; see also South African Liquor
Traders’ Association and Others v Chairperson, Gauteng Liquor Board,
and Others11).
[27] Costs are in the discretion of the court. The ordinary rule is that the
successful party is awarded costs as between party and party. However,
there are instances where the court would want to show its displeasure by
granting attorney and client costs even where a party has partially
succeeded in its application, as in this instance. The appellant has not
convinced the court why judgment was obtained in Kimberley and for that
reason Mr Mothibi had to incur unnecessary costs for the judgment to be
rescinded. He has had to appoint correspondence attorneys because he
litigated from another province. It was further within his right to oppose the
appeal. I am satisfied that the trial court did not make a mistake by granting
a cost order against the appellant.
ORDER
[28] In the premise, the following order is issue d:
a. The appeal against orders 1, 2, 3, 4 and 6 of the court a quo is
dismissed;
b. The appeal against order 5 of the impugned order is upheld in part
and the said order is substituted with the following:
10 2015 (5) SA 600 (CC) paras 51 – 55.
11 2009 (1) SA 565 (CC) para 54.
14
“5. All the benefits that Br idge Debt obtained from the judgment
granted against the applicant under case number 8874/2012,
are void ab initio and the court orders that restitution is to be
effected against Bridge Debt within five (5) days of this order.”
c. The appellant shall bear the costs of this appeal on an attorney and
client scale.
________________________
APS NXUMALO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I concur .
________________________
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For appellant: Adv Noens M.A. Muller
Instructed by: Verster & Associate Attorneys, Pretoria
C/o Majiedt Swart Inc, Kimberely
For respondent: Adv H.P. van Staden
Instructed by: EDJ Attorneys Incorporated, Bloemfontein
C/o Van Der Wall Incorporated Attorneys, Kimberely