Byron v Duke Inc (339/2001) [2002] ZASCA 58; [2002] 3 All SA 235 (A) (30 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 58
|

|

Byron v Duke Inc (339/2001) [2002] ZASCA 58; [2002] 3 All SA 235 (A); 2002 (5) SA 483 (SCA) (30 May 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE
NO. 339/2001
In the matter between
MARK
BYRON Appellant
and
DUKE INCORPORATED
Respondent
____________________________________________________________
CORAM:
SMALBERGER ADP, OLIVIER, ZULMAN, MPATI JJA and LEWIS AJA
HEARD: 21
MAY 2002
DELIVERED: 30 MAY 2002
____________________________________________________________
Condonation – validity of a writ of execution in
respect of a taxed bill of costs issued in the name of the successful
party, the
proceeds of the bill having been ceded to the attorney of
the successful party.
JUDGMENT
ZULMAN
JA
[1]
This
is an appeal, with the leave of the court
a quo
, against an
order dismissing an application brought by the appellant to set aside
a writ of execution and an attachment made pursuant
thereto. The
writ was issued by the respondent. The respondent is a company which
practises as attorneys.
The appellant has
brought a substantive application to this Court seeking condonation
for his failure to comply with a number of rules
of this Court. The
application is opposed by the respondent.
[2]
The
principles governing condonation applications and the factors which
weigh with this Court are well-known and have been often
restated.
The main principles are succinctly formulated in
Federated
Employers Fire & General Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360
(A) at 362 F-H as follows:
“
[T]he factors usually weighed by the Court include
the degree of non-compliance, the explanation therefor, the
importance of the case,
the prospects of success, the respondent’s
interest in the finality of his judgment, the convenience of the
Court and the avoidance
of unnecessary delay in the administration of
justice;…”
[3]
The
material facts relating to the condonation application are the
following:
3.1 On 22 August 2000 the respondent caused the
Registrar of the High Court to issue a writ of execution authorising
the Sheriff to
attach the appellant’s movables in execution.
3.2 On 25 August 2000 the Sheriff, acting in terms of
the writ, attached certain movables belonging to the appellant.
3.3 On 5 September 2000 the appellant brought an
application to set aside the writ and attachment made pursuant
thereto. The application
was opposed.
3.4 On 27 October 2000 the application was dismissed
with costs by the court
a quo
.
3.5 On 3 November 2000 the appellant delivered an
application for leave to appeal against the order dismissing the
application together
with a request for reasons, no reasons having
been furnished by the court
a quo
when the application was
dismissed.
3.6 On 12 December 2000 the reasons were furnished.
3.7 On 16 February 2001 the court
a quo
granted
leave to appeal to this Court.
3.8 On 14 March 2001 a Notice of Appeal was delivered to
the respondent. On 16 March 2001 the Notice of Appeal was lodged
with this
Court by the appellant’s Bloemfontein attorneys. This
was one day after the last day provided for in the rules for lodging
the
notice (Rule 7(1)). On the same day the appellant’s
Bloemfontein attorneys wrote to the appellant’s Johannesburg
attorneys
confirming that the Notice of Appeal had been lodged and
that they were “
tans in afwagting op die uitreiking
van die saaknommer
”.
3.9 In terms of the rules of this Court the record of
the proceedings in the court
a quo
were required to be lodged
within three months of the lodging of the notice of appeal, namely on
or before 15 June 2001 (Rule 8(1)).
However Liezel van Niekerk, an
attorney in the office of the appellant’s Johannesburg attorneys,
and the sole deponent to the
appellant’s founding affidavit in the
condonation application, decided to wait for the case number before
preparing the appeal
record. It is not apparent to me why a case
number was not allocated when the Notice of Appeal was lodged with
the Registrar of
this Court. The appellant’s Bloemfontein
attorneys have not chosen to enlighten this Court in this regard.
Furthermore, why
it was in any event necessary to obtain the case
number, and why Van Niekerk could not simply have obtained the case
number by making
a telephone call to her Bloemfontein correspondent
or the Registrar of this Court, is not explained. Van Niekerk states
that she
“
planned
” to diarise her file “
for
the end of April 2001 for the purpose of attending to the preparation
and lodging of the appeal record
” which would have given
enough time for preparation of the record. This notwithstanding,
nothing was done because according to
her “
due to an
oversight in the offices of the applicant’s attorneys such file was
never diarised
”. There is no explanation whatsoever as to
whose “
oversight
” brought about this
situation nor how it occurred.
3.10 On 12 June 2001 Van Niekerk’s Bloemfontein
correspondent telefaxed the case number to her. Due to “
pressure
of work
” the telefax did not come to her attention and she
took no steps to lodge the record notwithstanding the fact that the
record was
required to be lodged by no later than 15 June 2001.
3.11 The telefax apparently only came to her attention
on 22 June 2001 because the respondent advised her that the appeal
had lapsed
and that execution was to proceed. Some three days later,
on 25 June 2001, the appellant launched an application in the court
a
quo
for an order staying execution. This order was granted on 7
August 2001.
3.12 It was only on 27 June 2001 that the appellant’s
attorneys gave instructions for the judgment of the court
a quo
granting leave to appeal to be typed. According to Van Niekerk this
was because the appellant’s attorneys were attending to the
application to stay execution. Van Niekerk does not state who of the
appellant’s attorneys were so occupied nor does she seek
to
explain why there was apparently no one in the appellant’s
attorneys’ office who could be instructed to take the simple step
of ordering the record during this period, even if Van Niekerk
herself was fully occupied with the application to stay execution.
3.13 Although difficulties were experienced in obtaining
the learned judge
a quo’s
signature to the judgment granting
leave to appeal, the judge eventually signed the judgment which was
uplifted on 7 August 2001.
On 13 August 2001 the appeal record was
completed. On 15 August 2001 an application for condonation and
re-instatement was lodged.
3.14 Nothing was done by the appellant’s attorney to
prosecute the appeal between 16 March 2001 until 27 June 2001 when
attempts
were made to obtain the judge
a quo’s
signature to
the judgment granting leave to appeal – a period of approximately 3
months. It is furthermore apparent that had
the respondent not
sought to execute on the judgment that it had obtained after the
appeal had lapsed, the appellant’s attorneys
would probably have
continued to do nothing.
3.15 Non-compliance with the rules did not cease here.
The appellant’s replying affidavit in the application for
condonation was
also lodged late.
[4]
It
is apparent from the aforegoing history that there were a number of
instances where the rules of court were not complied with.

Furthermore, inadequate and indeed, in some cases, no explanation is
given for such non -compliance. I do not believe, however,
that the non-compliances in question were so flagrant and gross that
merely because of them the application for condonation should
be
dismissed without considering the appellant’s prospects of success
on appeal (cf, for example,
Ferreira v Ntshingila
1990 (4) SA
271
(A) 281J – 282A and
Darries v Sheriff, Magistrate’s Court
Wynberg, and Another
1998 (3) SA 34
(SCA)
at 44H–J)
[5]
I
accordingly now turn to consider whether the appellant has shown a
reasonable prospect of success on appeal. The material facts
in
regard thereto are:
5.1 On
11 August 1999 an agreement of settlement concluded between the
appellant, Mr Derek Jackson and Absa Bank Limited was made
an order
of court. In terms of the order the appellant was to make payment of
Jackson’s “
costs of suit within seven days
from date of taxation, without set-off or deduction
”.
5.2 On
11 August 2000 the amount of such costs was settled between tax
consultants appointed by the attorneys acting for the appellant
and
Jackson in an amount of R48 612,44. On the same day the taxing
master made his
allocatur
in accordance with such settlement.
5.3 On 11 August 2000 Mr Gary Duke of the respondent
telefaxed a letter to the appellant’s attorneys the material
portion of which
reads:
“
We are in
receipt of the Bill of Costs amended as per the agreement between our
respective taxing consultants in terms of which the
final amount as
per the Bill is the amount of R48 612,44.
We are advised by our taxing consultant that same was
endorsed by the Taxing Master earlier today.
Note that our client has ceded his rights to the
proceeds from the Bill of Costs to ourselves for outstanding legal
fees and we accordingly
request that your client make payment of the
amount of the Bill to our offices.
Kindly acknowledge receipt hereof and we look forward
to receiving your client’s cheque in settlement thereof soonest.”
5.4 Later on 11 August 2000 Duke telefaxed a further
letter to the appellant’s attorneys stating as follows:
“Kindly note that we no longer represent Mr Jackson.
We have no details of his present whereabouts.”
5.5 On 15 August 2000 the appellant’s attorneys
acknowledged receipt of the two letters of 11 August 2000. In the
letter they record
that the appellant disputes the cession and
requires details of it. The letter also expresses the opinion that
“
given the disputed cession and the defences that my
client has to such claim … you ought to institute action against my
client should
you persist with such cession
”.
5.6 On 17 August 2000 the respondent replied in a letter
recording that there was no basis for the appellant disputing the
cession,
recording that the cession was oral and pointing out that it
was a specific term of the settlement that the appellant would make
payment of costs of suit within seven days from date of taxation
without deduction or set-off. The letter concludes by stating that
the respondent intends proceeding with a writ.
5.7 No payment was forthcoming. As previously
mentioned the respondent then caused the Registrar to issue a writ of
execution.
[6]
As
I understand the appellant’s argument, he contends that the writ of
execution is void for the following reasons:
6.1 The right or
locus standi
to institute execution proceedings in terms of
the costs order after the cession by Jackson remained with Jackson.
The cession
was only of the proceeds of the costs order and did not
carry with it the right or
locus standi
to institute execution
proceedings.
6.2 In the
alternative, if after such cession the respondent acquired the right
or
locus standi
to institute execution proceedings in terms of
the costs order, the respondent could not issue a writ of execution
in the name of
Jackson, but had to substitute itself for Jackson as
the execution creditor and institute such execution proceedings in
its own name.
6.3 In the further
alternative, even if after such cession the respondent had the right
or
locus standi
to execute the costs order (as cessionary) in
the name of Jackson (as cedent), the respondent lacked authority to
issue the writ
in the name of Jackson, as Jackson had terminated the
respondent’s mandate to do so.
(An argument raised in the appellant’s heads of
argument to the effect that the cession was in some way tainted with
champerty was
wisely not persisted in).
[7]
A
fair and sensible reading of the letter of 11 August 2000 which sets
out the details of the cession makes it clear that this is
a case of
an
out â€“and -out
cession. Any suggestion of divorcing, as it were, the substantive
rights contained in the cession from
the procedural rights to act
thereon is untenable. Such a construction would be totally
unrealistic. To give a person a right
to obtain the “proceeds”
of a bill of costs but not to arm that person with the procedural
ability to do so is, in my view, an
absurdity. As pointed out by
Van den Heever JA in
First National Bank of SA Ltd v
Lynn NO and Others
[1995] ZASCA 158
;
1996 (2) SA 339
(A) at 352C-D:
“
A right of action does not exist independently of the
underlying right itself. The former is merely the procedural
manifestation
of the latter… [T]he procedural manifestation of
the underlying right would acquire meaning only once the underlying
right became
exigible”.
Equally apposite are the following remarks of Olivier JA
in the same case at 356 D-E:
“
In
the present case a suspended right to claim payment of the retention
money came into being on 27 August 1990. As explained by
De Wet
and Van Wyk (loc cit)
[Kontraktereg en Handelsreg 5
th
ed vol 1 at 150 –1], that right constitutes a legal reality and not
a mere
spes. Inter alia
, it can be ceded…”.
(See
also
Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere
1999 (3) SA 389
(HHA) at 399F-H and 411D-E) and
Headleigh Private
Hospital (Pty) Ltd t/a Rand Clinic v Soller & Manning Attorneys
and Others
2001 (4) SA 360
(W) at 366 J – 367 A.
It
is plainly implicit, if not expressly stated, on a proper
construction of the letter detailing the cession, that what was
being
ceded was not
simply the right to the
proceeds of execution but also the procedural right to bring this
about by way of the issue of a writ of
execution.
[8]
The contention that even
if there was a right or
locus standi
to institute execution
proceedings in terms of the costs order the respondent was precluded
from issuing a writ in the name of Jackson
but was obliged to
substitute itself for Jackson as execution creditor and to institute
such execution proceedings in its own name,
is equally without
substance. First, where a judgment creditor has ceded his rights it
is not absolutely necessary for the cessionary
to obtain his
substitution on the record before he may sue out a writ in the name
of the cedent. De Villiers J in
Schreuder v Steenkamp
1962
(4) SA 74(O)
at 76H put the matter in these brief terms:
“
Volgens die outoriteite is dit egter nie nodig vir ‘n
sessionaris om die naam van die sedent met sy naam te laat vervang
nie: hy
kan ‘n lasbrief uitneem in die naam van die sedent.”
(See also
Kourie and Another v
Sasseen
1965 (1) SA 490
(T) at 491 A-C and
Herbstein and Van
Winsen
The Civil Practice of The Supreme Court of South Africa
(4
th
Edition p 757) and
Headleigh Private Hospital
(Pty) Limited (supra)
at 373E – 374B. Second, it is clear
from authorities such as
Sachs v Katz
1955 (1) SA 67
(T) at
72D that a writ must be in “
strict conformity
with the Court’s order which warrants its issue
”.
[9]
It is apparent from the
writ in this case that:
9.1 It is issued in case number 98/31408 being the case
number of the application which was settled.
9.2 It describes the plaintiff in the heading thereof as
being Jackson, the appellant as the first defendant and Absa Bank as
the
second defendant.
9.3 The writ directs the Sheriff to attach and take into
execution the movable goods of the appellant at an address stated,
and to
cause to be realized by public auction the sum of R48 612,44
together with interest thereon at the rate of 15.5% per annum from 11
August 2000 (the date of taxation of Bill of Costs) to date of
payment.
9.4 The Sheriff is further directed to pay to the
plaintiff or its attorneys the sum due to it as aforementioned.
9.5 The writ is signed by G Duke who is described as
being of “applicant’s attorney” Duke Incorporated (the
respondent).
The
writ is therefore in strict conformity with the Court’s order which
warranted its issue. The writ was accompanied by a letter
to the
Sheriff in which it was recorded that the proceeds of the writ had
been ceded to the respondent. In any event the cession
amounted to
one which appointed the respondent as
procurator in rem suam
thereby entitling the respondent to sue in the name of Jackson if the
respondent considered it “
more favourable for
the more advantageous recovery of the settlement of the debt
”
(Sande
Commentary on Cession of Actions
, Anders’
translation (1906) chapter 9 para 7 p 173).
[10]
The
final alternative argument to the effect that Jackson had terminated
the respondent’s authority to issue the writ in his name
is also
lacking in merit. The second letter written on 11 August 2000
advising that the respondent no longer represented Jackson
is relied
upon for this argument. As I have already pointed out the letter
simply states: “
Kindly note that we no longer
represent Mr Jackson”.
It does not state that
there was no existing authority to issue a writ in the name of
Jackson so as to enable the respondent to proceed
with the
execution. This was plainly, for the reasons that I have previously
indicated, part and parcel of the cession. There
was no point in
ceding the amount of the Bill of Costs without at the same time
enabling the respondent to give effect to it.
[11]
Accordingly
the appellant has no reasonable prospects of success on the merits of
the appeal. In the result the condonation application
must fail.
[12]
The question of costs
remains for consideration. Although the conduct of the appellant’s
attorneys was not exemplary and exhibits
a disregard for the rules of
this Court I do not regard such conduct as being of such a nature as
to warrant the extreme order of
penalizing the attorneys with a
de
bonis propriis
costs order. I nevertheless believe that this
Court should mark its displeasure with such conduct. The
appellant’s attorneys
were in court during argument. At the
request of the Court, counsel for the appellant obtained an agreement
from them that they
would not object to an order being made depriving
them of any right to claim costs from their client in regard to the
condonation
application.
[13]
In the result I make the
following order:
13.1 The application for condonation
is refused.
13.2 The
appellant’s attorneys are not entitled to seek to recover any costs
from the appellant in regard to the application for
condonation.
13.3 The
appellant is ordered to pay the respondent’s costs, including the
costs incurred in relation to the appeal.
----------------------------------------
R
H ZULMAN
JUDGE
OF APPEAL
SMALBERGER
ADP )
OLIVIER
JA ) CONCUR
MPATI
JA )
LEWIS
AJA )