IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT
CASE NO: 837/2024
REPORTABLE
In the matter between
THE ROAD ACCIDENT FUND Applicant
And
THE SHERIFF: EAST LONDON First Respondent
MDUZULWANA ATTORNEYS INC Second Respondent
SOUTH AFRICAN BOARD FOR SHERIFFS Third Respondent
______________________________________________________________ _______
JUDGMENT
______________________________________________________________ _______
MHAMBI AJ
[1] In this application the applica nt challenges the 1st respondent’s decision to attach
and remove its movable assets, despite , according to applicant being furnished with an
undertaking in terms of Rule 45(5) of the Uniform Rules of this Court . The 1st
respondent is to be herein after referred to as the sheriff.
[2] Despite the points of law raised by the respondents ,the crux of this applicat ion is
the interpretation of Rule 45(5) of the uniform rules.
[3] The applicant suggests a purposeful and contextual approach in interpreting rule
45(5). In this , the applicant relies on the decision in National Join t Municipal Pension
Fund v Endumeni Municipality1, I will deal more on this decision later in this judgment.
[4] The applicant contends: -
a) The purpose of the rule is to relieve the judgment debtor of the burden of
having its property attached and removed.
b) The rule protects the interests of judgment creditor by preserving the
attached property so that it is available to be so ld in a sale in execution.
c) If the judgment debtor has sufficient means to give an undertaking, the
latter will be sufficient and will satisfy the requirements of rule 45(5).
d) The instance, by the sheriff of a surety is m erely elevating form over
substan ce.
[5] The applicant further contends that, by virtue of it, filing an undertaking in terms
of rule 45(5), the sheriff is prohibited from removing its movable property.
[6] In this accord, the sheriff contends that the applicant misapprehends rule 45(5)
and that the purported undertaking is woefully non -compliant with that which is
envisaged by the rule.
1 2012 (4) SA 593 (SCA) (16 March 2012)
[7] The 2nd respondent’ s contention is based on the defects at points from the
applicant’s Rule 45(5) undertaking and submits that the applicant misinterprets and
misconstrues the purport of Rule 45(5) read with Rule 45(6).
[8] The 2nd respondent contends that the applicant’s u ndertaking in and upon itself
was defective in the following respects: -
a) It contained no lists of items at all.
b) It was not accompanied by any surety from someone with sufficient
means .
c) There is no undertaking to satisfy the judgment. The rule 45(5)
undertaking was not w orth the paper it was written on.
[9] The background to this application is as follows: -
[10] The 2nd respondent obtained a judgment on behalf of its clients against th e
applicant. The judgment was granted by default on 24 September 2023 for the payment
of an amount of R2 135 218.00.
[11] Subsequent to non-payment , the 2nd respondent caused a writ of execution
issued on behalf of its clients on 09 April 2024 . On 24 April 2024 , the sheriff armed with
the previously mentioned writ of execution attached and removed certain items,
(movable property ) belonging to the applicant.
[12] The applicant gave the sheriff what it called an undertaking in terms Rule 45(5) of
the Uniform Rules.
[13] The sheriff, according to the applicant ignored the undertaking and proceeded to
remove the applicant’s movable property.
[14] On 25 September 2024, the applicant requested the sheriff by letter to return the
removed items , based its reason on the purported undertaking in terms of Rule 45(5).
On instructions of the 2nd respondent, the sheriff proceeded to remove the movable
items belonging to the applicant.
[15] The question to be answered is whether the undertaking by applicant constitutes
an undertaking with in the ambit of Rule 45(5).
[16] The undertaking filed by the applicant reads as thus: -
Form19
FORM OF SECURITY UNDER RULE 45 (5)
IN THE HIGH COURT OF SOUTH AFRICA
(GAU TENG DIVISION, PRETORIA)
In the matter between:
LUNGELWA MACETYWA OBO LINGOMSO AND LUPHAWU Plaintiff
And
THE ROAD ACCIDENT FUND Defendant
WHEREAS by issued under virtue of the certain writ Case Number 43630/2019
of the High Court of South Africa, Gauteng Division, Pretoria, dated 8 April 2024
issued at the instance of L Mcetywa &Luphawu Macetywa against The Road
Accident Fund.
The sheriff has seized and laid under attachment the undermentioned articles,
namely:
Attachments schedule
Now, therefore, I, the said Acting RGM,(appointed as Acting Regional Manager)
on behalf of The Road Accident Fund, hereby undertake to the sheriff East
London High Cour t or her cessionaries, assigns or successors in office, that the
said property shall not be made away with or disposed of, but shall remain in
possession of The Road Accident Fund and be produced to the sheriff East
London High Court (or other person auth orized by him to receive the same) on
any other day when the same may be required in order to be sold, unless the
attachment shall legally be removed.
Signed at East London on this 23rd Day of April 2024
___________________________________________
Obo JUDGEMENT DEBTOR
Full names: Lance Johnstone
WITNESSES:
1._____________________________________
Xolani Lamani
2.________________________________________
Ms_Nosithembele Myataza
[17] There is a need to lo ok at Rule 4 5(5) in its original form, it reads:
RULE 45(5):
45(5) “Where any movable property has been attached by the sheriff, the
person whose property has been so attached may, together with some
person of sufficient means as Surety to the satisfactions of the sheriff,
undertake in writing that such property shall be produced on the day
appointed for the sale thereof, unless the said attachment shall sooner
have been legally removed, whereupon the Sheriff shall leave the property
attached and Inv entoried on the premises where it was found. The Deed
of Suretyship shall be as ne ar as may be in accordance with form 19 of
the first schedule.”
Subrule 6 provides: -
45(6): -
“If the Judgment Debtor does not, together with a Surety, give a n
undertaking as aforesaid, then unless the execution creditor otherwise
directs, the Sheriff shall remove the said goods to some convenient place
of security or keep possession thereof on the premises where they were
seized, the expense whereof shall be r ecoverable from the judgment
debtor and defrayed out of the levy ”.
[18] The rule is invoked when two scenarios exists” –
a) There must be existence of a judgment, the judgment debtor must have
failed to satisfy the judgment.
b) The judgment creditor armed with the judgment and the writ of execution,
must have instructed the Sheriff to proceed and enforce the judgment through
execution.
[19] Form 19 of rule 45(5) reads as follows : -
FORM 19
FORM OF SECURITY UNDER RULE 45(5)
In the High Court of South Africa
(……………….Division)
In the matter between:
Plaintiff
Defendant
Whereas by virtue of certain Writ of Supreme Court of South Africa, …………….
Division, dated the ………………………… day of ………………… 19……., issued
at the instance of A.B. against C.D. f …………………………………………. …..the
Sheriff has seized and laid under attachment the undermen tioned articles,
namely:
10 Oxen
1 Plough
1 Harrow
etc, etc, etc
Now, therefore, we the said C.D. and G.H.,
of …………………………………………………………………………………………
a ………………………………………………… (occupation), as surety from him, bind
ourselves severally and in solidum, hereby undertaking to the said sheriff or his cession -
aries, assigns or successors in office, that the said goods shall not be made away with
or disposed of, but shall remain in th e possession of the said C.D. under the said
attachment, and be produced to the said sheriff (or other person authorized by him to
receive the same) on the ………………….. day of …………. 19……… (the day
appointed for the sale), or on any other day when the same may be required in order to
be sold, unless the said attachment shall legally be removed, failing which I, the said
G.H., hereby bind myself, my person, good and effects, to pay and satisfy the sum of
…………….(estimated value of the effects seized) to the said sheriff, his cessionaries,
assigns or successors in office, for and on account of the said A.B. in witness whereof
we, the said C.D. G.H., have hear unto set our hands on this …………… day
of…………. ..
C.D.
…………………….
Judgment Debtor
G.H.
………………………..
Surety
…………………………….. Sheriff
[20] On the basis of the parties’ contentions in respect of interpretation of rule 45(5), it
is apposite for this court to deal with the rules of interpretation as appearing hereunder.
[21] The words of Wallis JA are enough to define the purpose of interpretation as he
says: -
He begins in paragraph 18 by stating that2:
Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the particular provision or pr ovisions in
the light of the document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary rules of grammar and
syntax ; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must weighed in the
light of all these facto rs. The process is objective not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusiness like
results or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’ against, read in context and
having regard to the purpose of the provision and the background to the
preparation an d production of the document.
Wallis JA then goes on to say at paragraph 19 of the judgment that:3
2 2012 (4) SA 593 (SCA)
3 Emphasis added.
All this is consistent with the ‘emerging trend in statutory construction’. It clearly
adopts as the proper approach to the interpretatio n of documents the second of
the two possible approaches mentioned by Schreiner JA in Jaga v Donges NO
another, namely that from the outset one considers the context and the language
together, with neither predominating over the other. This is the approach that
courts in South Africa should now follow, without the need to cite authorities from
an earlier era that are not necessarily consistent and frequently reflect an
approach to interpretation that is no longer appropriate. The path that Schreiner
JA poin ted to is now received wisdom elsewhere.
And lastly at paragraph 20:4
Unlike the trial Judge I have deliberately avoided using the conventional
description of this process as one of ascertaining the intention of the legislature
or the draftsman, nor would I use its counterpart in a contractual setting, ‘the
intention of the contracting parties’, because these expressions are misnomers,
insofar as they convey or are understood to convey that interpretation involves
an inquiry into the mind of the legislature or the contracting parties. The reason
is that the enquiry is restri cted to ascertaining the meaning of the language of the
provision itself. Despite their use by generations of lawyers to describe the task
of interpretation it is doubtful whether they are helpful. Many judges and
academics have pointed out that there is no basis upon which to discern the
meaning that the members of parliament or other legislative body attributed to a
particular legislative provision in a situation or other legislative body attributed to
another legislative provision in a situation or con text of which they may only
dimly, if at all, have been aware. Taking Parliament by way of example,
legislation is drafted by legal advisers in a ministry, redrafted by the
parliamentary draftsmen, subjected to public debate in committee, where it may
be revised and amended, and the passed by a legislative body many of whose
members have little close acquaintance with its terms and re motivated only by
their or their party’s stance on the broad principle in the legislation. In those
4 Emphasis added.
circumstances to speak of an intention of parliament is entirely artificial. The
most that can be said is that in a broad sense legislation in a democracy is taken
to be a reflection to the views of the electorate expressed through their
representatives, although the fact that democratically elected legislatures
sometimes pass legislation that is not supported by or unpopular with the
majority of the electorate tends to diminish the force of this point.
[22] In my view, the process of interpretation is an objective one and not a subjective
one. I say this because the interpretation has to consider the purpose rather than the
context, however, the purpose should not be inconsistent with the purpose of which the
rule was designed for, in this context, rule 45(5), in order to achieve the purpose of
which rule 45(5) was designed, I have to look at the plain language used in the rule
itself.
[23] The applicant makes the allegation that the sheriff ignored the under taking and
nevertheless removed the applicant’s movable goods.
[24] The applicant addressed a letter to the sheriff requesting the return of the
movable goods, owing to the above understanding given in terms of section45(5). A
second letter was sent to th e sheriff, this time requesting reasons for the refusing to
comply with Rule 45 undertaking.
[25] The applicant resorts to legal argument in the founding affidavit and argues that
the decision by the sheriff is unlawful and in contravention of Rule 45(6) and the sheriff
is only permitted to remove removable goods if there is no 45(5) undertaking .
[26] The sheriff filed an Answering affidavit wherein she points out to the court that
the RAF , applicant, misinterprets and misconceive the purport of Uniform Rules 45(5)
and 45(6).
[27] The undertaking in and upon itself was defective in the following respec ts:
a. it contained no lists of items at all.
b. it was not accompanied by any surety from someone with sufficient
means. He refers to Mannatt and Another v de Kock and Others
(18799/2018) [2020] ZAWCHC 10 (21 February 2020) , para 13, where the
court hel d that the undertaking must be accompanied by a third -party
surety: .
c. there is no undertaking to satisfy the judgment debt or to pay the value of
the attached items.
[28] Given these defects, it is hardly not surprising that the sheriff was not satisfied
with the Rule 45(5) undertaking. The rule 45(5) undertaking was not worth the paper it
was written on. In terms of the rule 45(5) , the undertaking must be to the satisfaction of
the sheriff.
[29] The sherif f goes on to state that on a proper interpretation of Rule 45(5):
a. The Rule goes to property that had been lawfully attached and where the
sheriff is in the process of removing.
b. The judgment debtor ( or a person with sufficient means) may approach
the sheriff with a Rule 45(5) Notice and must undertake to bring the
attached property to the sale in execution.
c. The sheriff must utilize a discretion in considering the Rule 45(5)
undertaking and only if sat isfied that she can leave the property in
possession of the judgment debtor. The sheriff has no obligation in law to
leave the property simply because an undertaking has been sent.
d. Rule 45(5) does not halt the execution or suspends the execution proces s.
The applicant should have embarked on Rule 45A proceedings. Rule
45(5) does not stay the execution.
e. Rule 45(6) enjoins the sheriff to continue with the removal of the goods
unless the judgment creditor intervenes and directs that the sheriff must
not remove the items so attached. This rule does not conder any rights on
the judgment debtor.
f. When property is attached by the sheriff in execution, a pignus praetorium
is created. This means that the goods are placed in custody of the sheriff,
an office r of the court.
[30] Having considered the parties’ contentions, it is clear that the parties differ on
interpretation of rule 45 (5), and that regard had to be whether the undertaking by the
applicant complies with the impug ned rule.
[31] It is by now trite that when a legis lative provision is to be interpreted,
consideration should be given to the language used in the light of the ordinary rules of
grammar and syntax, a se nsible meaning should be preferred rather than sensible one ,
as elucidated by the Constitutional court in Endumeni judgment.
[32] This must be viewed together with what the Constitutional court said in African
Christian Democratic Party v Electoral Commis sion and Others5, it was held that the
adoption of the purposive approach in our law has rendered absolute all previous
attempts to determine whether a statutory provision is directory or perem ptory on the
basis of the wording and subject of the text of the provision. The qu estion was thus
whether the applicant did Constitutional compliance with the statutory provisions viewed
in the light of their purpose .
[33] In such circumstances the court in Molokwane warned that a narrowly textual
and legalistic approach is to be avoided.6
[34] Recently, the SCA in Minister of Police v Thamsanqa Ronny Miya ,7 referring to
African Democratic Party Constitutional court decision8, emphasized that the purpose of
5 2006 (3) SA 305 (CC), 2006 (5) BCLR 579 (CC) para 25.
6 Minister of Police v Samule Molokwana (730/2021) [ 2022] ZASCA 111 (15 July 2022) para 16
7 (1250/2022) [2024] ZASCA 7 1 (06 May 2024) at para 12,
8 Supra footnote
the impugned section must be fulfilled, and if it is fulfilled, a mechanical approach is to
be deprecated.
[35] Regard be to the present dispute , at best is to interpret the words used in rule 45
(5) and accompany ing sub rule (6) in their original context. This will assist in
ascertaining the p urpose for which the rule was designed for , the plain language used in
the rule will assist in this regard.
[36] Furthermore , the constitutional court has made it clear in African Church
Democratic Party v Electoral commission and others ,9 when interpreting any legislation,
the purpose of the impugned section must be fulfilled, and if it is fulfilled, a mechanical
approach is to be deprecated.
[37] Regard also be to the facts of this case; I am tempted to follow Innes J approach
as it was in Venter V Rex10 in which he stated what became the golden rule of statutory
interpretation as follows: -
“[W]hen to give the plain words of a statute to [an] absurdity so glaring that it
could never have been contemplated by the legislation, or when it would lead to
a result contrary to the intention of the legislature, as shown by the context or by
such other considerations that the court is justified in taking into account, the
court may depart from the …………. Effect to remove the absurdity and to give
effect to the true int ention of the legislature”.
[38] In analysing this golden rule, author and advocate, Kessler Perumalsamy11,
suggests four things to be considered in interpretation: -
9 Supra fn
10 1907 TS 910 914 -915
11 The life and Times of Textualism in South Africa, University of the Western Cape, RSA, 5 November
2019.
a) Find the literal meaning of a word. This may be achieved by looking at
the dictionary meaning of a word or phrase. [own emphasis added]
b) If the literal meaning is absurd, vague or ambiguous , we may depart from
that meaning .
c) But when we depart from the literal meaning we have to give a word a
meaning intended by the legislature.
d) The meaning intended by the legislature can be determined only in
limited context, in this Kessler refers to Rex v Detody12.
[40] This accords with what Mogoeng CJ suggested in Afriforum V University
of the Free State13 :-
“Some of the key interpretive orders that have by now become trite are the
textual or ordinary grammatic meaning, context, purpose and consistency with
the constitution. Context comes into operation where the ordinary g rammatical
meaning is not particularly helpful or conclusive. And contextual interpretation
requires that regard be had to the setting of the word or provision to be
interpreted with particular reference to all the words, phrases or expressions
around th e word or words sought to be interpreted. This exercise might even
require that consideration be given to other subsections, sections or the chapter
in which the key word, provision or expression to be interpreted is located”.
[41] After having considered the authorities I have cited above, I now turn to
scrutinize the wording of rule 45(5).
12 1926 AD 198 229
13 2018 2 SA 185 (CC) at para 43
[42] Subrule 5 has the words “a person of sufficient means” and the words “surety ”.
The two words read together indicate that the rule intends a person other than
the judgment debtor with sufficient means to pay the judgment debt and stand as
surety on behalf of the judgment debtor.
[43] The purpose of the subrule is to ensure that the judgment debt is satisfied in
order to avoid attachment of the goods belonging to the judgment debtor. I disagree
with the submission by the applicant that the applicant itself can do the undertaking only
to ensure that the attached goods will be available as and when the sheriff wanted them
for the purposes of s ale in execution, I disagree. This will defeat the purpose and the
context to which the rule was intended. In my view the rule is intended to secure the
payment of the principal debt beyond ensuring the presence of the attached goods as
and when the sherif needs them, the use of the word “ surety ”, or a person of
sufficient means denotes some one else other than the judgment debtor, that’ s the
purpose of the rule, any interpretation beyond that, in my view may perpetuate an
illegality.
[44] Form 19 itself, has a heading : “ FORM OF SECURITY” , and has a space for
the signature of the judgment debtor and that of the surety, clearly the for m is designed
for the undertaking not only to be signed by the judgment debtor but also by the person
with sufficient means standing as surety to satisfy the judgment. This aligns with the
purpose of the rule.
[45] Having said that, clearly the undertaki ng by the applicant does not comply with
subrule 5 of rule 45, nor does it comply with form 19, subrule clearly states that the
undertaking must be as near as possible to form 19, which that of the applicant fails to
meet this threshold.
[46] Because I have de alt with the main issue for determination in this application, I
see no basis to deal with the points of law as raised by the respondents. Consequently,
this application should fail, I am not persuaded that the applicant has to be punishe d
with punitive costs order, the subject of this matter falls within the interpretation of the
law in which case , the applicant is within right to have his version of interpretation.
[47] In the result, the following order issues:
ORDER:
1. This application is dismissed with costs on scale A of the uniform
rule 67A.
____________________
M. MHAMBI
JUDGE OF THE HIGH COURT ( acting)
APPEARENCES :
Mr. V.S. Notshe SC , with her T.N. Mlam bo: counsel for the applicant
Instructed by : Madiba and Co Attorneys
103, Club Avenue
Waterkoof heights
Pretoria
Mr. L. Mati : counsel for the 1st respondent
Instructed by : Bate Chubb and Dickson Inc
34 Western avenue , East London
Mr. Geach SC, with him, Mr. Keh rahn, counsel for the 2nd respondent
Instructed by : Mduzulwana Attorneys Inc.
Hatfield, Bridge
Pretoria
DATE HEARD : 23 January 2025
JUDG MENT DATE : 24 April 2025