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[2026] ZAGPPHC 434
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South African Board for Sheriffs v Mphahlele and Others (2026-096245) [2026] ZAGPPHC 434 (12 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 2026-096245
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
DATE
12 May 2026
SIGNATURE
In
the matter between:
THE
SOUTH AFRICAN BOARD FOR SHERIFFS
Applicant
and
JOHANNES
TSEKE MPHAHLELE
First
Respondent
THE
MINISTER OF JUSTICE AND
Second
Respondent
CONSTITUTIONAL
DEVELOPMENT
NAMEDI
TSHEPO MPHAHLELE
Third
Respondent
JUDGMENT
LENYAI J
[1]
This is an
urgent application in terms of Rule 6(12),
[1]
in which the Applicant (The South African Board for Sheriffs (“the
Board”)) seek the following relief:
(a)
a
declaratory order that the first respondent does not, as at the date
of hearing, hold a Fidelity Fund Certificate (“FFC”)
under the Sheriffs Act,
[2]
and
that his performance of any sheriff function without an FFC is
unlawful and an offence under sections 30(1)(a) and 60(1)(a)
of the
Act;
[3]
and
(b)
Interim
interdict, pending the final determination of the proceedings under
Case Numbers B6834/2025 and 245823/2025 (and any appeal).
[2]
Neither the second respondent nor the third respondent has entered an
appearance to oppose these proceedings.
The application is therefore
opposed solely by the first respondent.
Urgency
[3]
Rule 6(12)
[4]
provides that—
(a)
“
In urgent applications the court or
a judge may dispense with the forms and service provided for in these
rules and may dispose
of such matter at such time and place and in
such manner and in accordance with such procedure (which shall as far
as practicable
be in terms of these rules) as it deems fit.
(b)
In every affidavit filed in support of any
application under paragraph (a) of this subrule, the applicant shall
set forth explicitly
the circumstances which it is averred render the
matter urgent and the reasons why the applicant claims that applicant
could not
be afforded substantial redress at a hearing in due
course.”
[4]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135 (W),
[5]
the
court stated that —
“
The
degree of relaxation should not be greater than the exigency of the
case demands. It must be commensurate therewith. Mere lip
service to
the requirements of Rule 6(12)(b) will not do and an applicant must
make out a case in the founding affidavit to justify
the particular
extent of the departure from the norm, which is involved in the time
and day for which the matter be set down.”
[5] In
the matter beforehand, the applicant has submitted that the urgency
arises on four cumulative issues namely:
(a)
each day of continuation of
performing the duties as a Sherriff without a FFC by the first
respondent is a fresh offence under sections
30(1)(a) and 60(1)(a) of
the Sheriffs Act;
(b)
Third-party litigants and execution
creditors are exposed;
(c)
the Board’s statutory mandate under
section 7 and Chapter III is eroded daily; and
(d)
The underlying proceedings cannot deliver
prospective relief in time.
[6]
Based on the above submissions, I am satisfied that the Applicant has
established urgency. It remains uncertain
when the underlying
proceedings will be finalised, thereby leaving third-party litigants
and execution creditors in a vulnerable
and exposed position. Pending
the final determination of those proceedings, the continued
performance of sheriff functions without
a valid Fidelity Fund
Certificate would, on the Applicant’s case, constitute an
ongoing contravention of the Sheriffs Act.
The urgency in the present
matter is not self-created, particularly in light of the numerous
steps taken by the Board to resolve
the dispute through non-curial
means before approaching the Court. In the circumstances, this Court
is satisfied that urgency has
been adequately established.
Contravention of
Section 30(1)(a) and 60(1)(a) of the Sheriffs Act
[7]
Section 30(1)(a) of the Sheriffs Act reads that a sheriff or his or
her deputy shall not perform any functions
assigned to a sheriff by
or under any law unless the sheriff is the holder of an FFC.
[6]
[8]
In
Segwana
NO v South African Board of Sheriffs
2025 JDR 0492 (GP),
[7]
this
court stated that:
“
Section 26 of the
Act established a fidelity fund for sheriffs, which is largely aimed
at indemnifying the public for claims against
sheriffs. A Sheriff is
obliged to have a FFC by virtue of the provisions of section 30 (1)
(a) of the Act.”
[9]
A proper reading of section 30(1)(a) of the Sheriffs Act,
[8]
makes it clear that the possession of a valid FFC by a sheriff is
peremptory and not discretionary. In the absence of a valid FFC,
a
sheriff is not lawfully entitled to perform any sheriff functions,
and any attempt to do so would be contrary to the provisions
of the
Act.
[10]
Furthermore, section 60(1)(a) read with section 60(2) of the Sheriffs
Act provides that contraventions of section 30(1)(a)
may results in a
fine or to imprisonment for a period not exceeding one year, or to
both such fine and such imprisonment.
[9]
[11]
In terms of Chapter III of the Sheriffs Act, the authority to issue a
FFC to a sheriff vest solely in the Board established
under section 7
of the Act.
[10]
[12] What is
apparent before this court is that the respondent holds no FFC; he
continues to perform sheriff functions; and
he formally refuses to
desist.
Requirements of an
Interim Interdict
[13]
In the matter of
Setlogelo
Appellant v Setlogelo Respondent
1914 AD 221,
[11]
the court
confirmed the requirements of an interdict as follows:
(a)
A prima facie right- as a matter-of-fact
law;
(b)
A well-grounded apprehension of irreparable
harm;
(c)
A balance of convenience in favour of the
granting of the interim relief; and
(d)
Absence of other satisfactory remedy.
Prima Facie Right
[14]
In terms of section 7 read with section 8 and Chapter III of the
Sheriffs Act,
[12]
the Board is
the only body vested with the statutory authority to issue FFC and to
regulate and maintain the integrity and standing
of the office of
sheriff. Where the Board has refused to issue a FFC and the previous
certificate has lapsed through effluxion
of time, the Board has a
direct and substantial interest in ensuring compliance with section
30(1)(a) of the sheriff Act.
[13]
This accordingly establishes, at the very least, a prima facie right
on the part of the Applicant, with the result that the first
requirement for the granting of an interim interdict has been
satisfied.
Well-grounded
apprehension of irreparable harm
[15] The
contravention is expressly admitted by the first respondent’s
attorneys and remains ongoing. In the present
matter, the violation
of section 30(1)(a), read together with section 60(1)(a) of the
Sheriffs Act, occurs on a continuous basis,
in that every act
performed by the first respondent in the execution of sheriff
functions since 1 January 2026 constitutes a separate
and fresh
contravention of the Sheriffs Act. The unlawful conduct therefore
persists each day that the first respondent continues
to perform
sheriff functions without a valid Fidelity Fund Certificate.
[16] This Court
cannot fold its arms and await the finalisation of the pending
proceedings while unlawful conduct is allegedly
being committed on a
daily basis. The Court is obliged to uphold the rule of law, and
permitting the first respondent to continue
performing sheriff
functions in the absence of a valid FFC would create a dangerous and
undesirable precedent. In the circumstances,
I am satisfied that the
second requirement for the granting of an interim interdict has
likewise been established.
Balance of convenience
in favour of the granting of the interim relief
[17] In considering
the balance of convenience, this Court is satisfied that it
overwhelmingly favours the granting of the
interim interdict. The
first respondent cannot suffer any cognisable legal prejudice by
being restrained from continuing conduct
which, on his own version
and that of his attorneys, is performed in the absence of a valid
FFC, a mandatory statutory requirement
under the Sheriffs Act. There
can be no balance of convenience in permitting conduct which is prima
facie unlawful and constitutes
a continuing criminal offence. Each
day that the first respondent continues to perform sheriff functions
without a valid FFC gives
rise to a fresh contravention of the Act.
[18] The balance of
convenience further favours the Applicant because this Court is
enjoined to uphold the rule of law and
ensure compliance with
existing legislation unless and until such legislation is repealed or
declared unconstitutional by a competent
court. To permit the first
respondent to continue exercising sheriff functions in contravention
of section 30(1)(a) would undermine
the authority of the statutory
regulatory framework governing sheriffs and erode public confidence
in the administration of justice.
Considerations of public policy and
good governance strongly militate against allowing state-sanctioned
functions, including the
service and execution of court processes, to
be carried out by a person who is statutorily prohibited from doing
so.
[19] The granting
of the interim interdict is also necessary to protect third-party
litigants and execution creditors who
may be exposed to significant
legal prejudice should court processes be served or executed by a
sheriff acting without lawful authority.
The Board, as the statutory
regulator entrusted with maintaining the integrity, legitimacy, and
proper functioning of the office
of sheriff, has a substantial
interest in ensuring compliance with the Act. Refusing the relief
sought would not only undermine
the Board’s regulatory mandate
but would also create a dangerous and undesirable precedent that
unlawful conduct may continue
pending the finalisation of protracted
proceedings. In the circumstances, I am satisfied that the third
requirement for the granting
of an interim interdict, namely the
balance of convenience, has been established.
Absence of other
satisfactory remedy
[20] The Applicant
submits that no adequate alternative remedy exists in the present
matter. A claim for civil damages would
not provide effective relief,
as it is incapable of preventing continuing unlawful conduct. The
harm complained of arises on a
daily basis through the continued
performance of sheriff functions without a valid FFC and damages
cannot offer similar protection
against such ongoing contraventions
of the Sheriffs Act.
[21] The Applicant
further contends that the criminal sanction provided for under
section 60 of the Sheriffs Act does not
constitute an adequate
alternative remedy. Criminal prosecution may take a considerable
period to finalise, during which the alleged
unlawful conduct would
continue unabated. Furthermore, the first respondent’s
persistence in performing sheriff functions
despite knowledge of the
statutory prohibition demonstrates that the possibility of criminal
sanction has not operated as an effective
deterrent.
[22] The pending
proceedings between the parties likewise do not afford immediate or
effective prospective relief. There remains
uncertainty as to when
those matters, including any appeals, will be finalised. In the
circumstances, I am satisfied that the Applicant
has established the
absence of a satisfactory alternative remedy and that an interim
interdict is necessary to prevent the continuation
of the alleged
unlawful conduct pending the determination of the underlying
disputes.
Order
[23]
(1)
The
court declarers and orders that the first respondent does not, as at
the date of hearing, hold a Fidelity Fund Certificate (“FFC”)
under the Sheriffs Act, and that his performance of any sheriff
function without an FFC is unlawful and an offence under sections
30(1)(a) and 60(1)(a) of the Sheriffs Act; and
(2)
Interim
interdict is granted, pending the final determination of the
proceedings under Case Numbers B6834/2025 and 245823/2025 (and
any
appeal).
(3)
The first respondent is ordered to pay the
costs of the application including the costs of two Counsel on a
party-and-party scale
C.
LENYAI J
JUDGE OF THE HIGH
COURT
PRETORIA
For
the Applicant: Adv JG Wasserman and
Adv TV Mabuda,
Instructed by
Herold Gie Attorneys
For
the Respondent:
Adv
Oosthuizen SC
Instructed by
Krynauw Incorporated
Date of Hearing
07 May 2026
Date of Judgment
12 May 2026
[1]
the
Uniforms Rules of Court
.
[2]
90
of 1986 (hereinafter referred to as the Sheriffs Act)
[3]
the
Sheriffs
Act (n 2) above.
[4]
the
Uniform Rules of Court (n 1) above.
[5]
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135
(W) at 137 E-F.
[6]
the
Sheriffs Act (n 2) above.
[7]
Segwana
NO v South African Board of Sheriffs
2025 JDR 0492 (GP) at para 3
[8]
Sheriffs
Act (n 2) above.
[9]
Sheriffs
Act (n 2) above.
[10]
Sheriffs
Act (n 2) above.
[11]
Setlogelo
Appellant v Setlogelo Respondent
1914 AD 221
at 227.
[12]
the
Sheriffs Act (n 2) above.
[13]
the
Sheriffs Act (n 2) above.