A and O Imports and Exports (Pty) Limited t/a Moreschi and Others v Liberty Group Limited and Others (4380/2021) [2023] ZAGPJHC 1456 (13 December 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 4380/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED. YES

DATE December 2023

In the matter between:

A & O IMPORTS AND EXPORTS (PTY) LIMITED First Applicant

t/a MORESCHI

avigdor gefen

Second Applicant

hanna YAFFEE

Third Applicant

and

LIBERTY GROUP LIMITED

First Respondent

TWO DEGREES PROPERTY (PTY) LIMITED

Second Respondent

SHERIFF OF THE HIGH COURT, SANDTON SOUTH Third Respondent

NEDBANK LIMITED SA LIMITED

Fourth Respondent

JUDGMENT

T VAN DER WALT AJ:

INTRODUCTION

[1] In the motion proceedings underlying this judgment the following order was handed down in urgent court on Thursday 30 November 2023:

[1.1] The application is dismissed.

[1.2] The first to third applicants, one paying the others absolved, shall pay the respondents’ costs insofar as such costs have been incurred, such costs to include those attendant on the employment of senior counsel.

[2] To facilitate timeous completion of a congested urgent motion court roll, reasons for the order were held in abeyance.

[3] The reasons for the order appear below.

[4] The applicants essentially sought an order in the form of a final interdict setting aside the attachment by the first and second respondents of the third applicant’s bank account held with the fourth respondent, together with declaratory orders for ancillary relief.

[5] These proceedings only directly concern the third applicant and her bank account but because the matter also involves the first and second applicants, they will be referred to in this judgment jointly as the applicants. Only the first and second respondents opposed the application, and they will be referred to as the respondents.

SUMMARY

[6] In their notice of motion the applicants sought the upliftment of the attachment in terms of a warrant (the warrant) of funds in the third applicant’s bank account (the bank account) held with the fourth respondent, an order declaring the warrant a nullity, an order setting aside the warrant, an order declaring the attachment of funds in the bank account unlawful, an order declaring the first and second respondents liable for wrongful and negligent attachment of funds in the bank account, an order forthwith repatriating all funds from wherever they are into the bank account. The applicants also sought interest and costs. The relief was sought on an urgent basis and in the form of final interdictory relief.

[7] The second and third applicants are directors and shareholders of the first applicant. They are jointly the judgments debtors in terms of a judgment under the above case number for rental in arrears and ejectment by Strydom J dated 14 September 2022 (the Strydom judgment).

[8] The first and second respondents are the judgment creditors in terms of the Strydom judgment. The third respondent is the Sheriff who executed the warrant in respect of funds in the bank account. The fourth respondent is the bank where the bank account is held.

[9] On 6 November 2023 the first and second respondents caused the bank account to be frozen pursuant to the warrant. In terms of a notice of attachment which accompanied the warrant, the fourth respondent as garnishee was directed to secure sufficient funds in the bank account to cover the capital amount, interest and costs in terms of the Strydom judgment. The warrants issued in terms of the Strydom judgment in fact comprised two elements namely a capital amount with interest, and a taxed bill of costs. For convenience, they will be referred to in the singular as the warrant.

THE APPLICANTS’ CASE IN A NUTSHELL

[10] According to the applicants, the relevant facts are as simple as this.

[11] On 16 September 2022 the first and second respondents were granted summary judgment inter alia for rental in arrears in the amount of R1 002 691.01 with interest and costs against the first to third applicants. Incorporated in the Strydom judgment was an order for the ejectment of the first to third applicants from premises leased from the first and second respondents at Nelson Mandela Square, Sandton City where they previously conducted the business of selling high value imported Italian Moreschi shoes.

[12] The applicants sought leave to appeal against the Strydom judgment. Strydom J dismissed the application for leave to appeal on 28 October 2022.

[13] The applicants appealed the dismissal of the application for leave to appeal to the Supreme Court of Appeal (the SCA) on 8 November 2022.

[14] More than six months later on 17 May 2023 the SCA granted the applicants leave to appeal to the full bench of this court.

[15] According to the applicants, their current attorneys of record came on record during March 2023. They encountered problems to obtain access to CaseLines and they only received notification of the SCA’s order on 17 July 2023 whereafter they filed and served the applicants’ appeal notice on 21 July 2023. The applicants’ current attorneys of record experienced technical difficulties with compiling the appeal record and were unable to file same timeously.

[16] Whilst the applicants had every intention to proceed with the appeal, the respondents issued and executed the warrant in respect of the bank account.

[17] The applicants rely on section 18(1) of the Superior Courts Act 10 of 2013 (the Act) which regulates the suspension of a judgment pending an appeal. As such, they contend that the warrant was issued and executed unlawfully pending their appeal against the Strydom judgment.

THE RESPONDENTS’ CASE IN A NUTSHELL

[18] According to the respondents, the applicants’ version bears a vague resemblance to the truth, but materially important facts have been deliberately and misleadingly omitted by the applicants. These facts, supported by annexures to the answering affidavit, include inter alia the following:

[18.1] After the applicants applied to the SCA for leave to appeal, their erstwhile Johannesburg attorneys of record and their Bloemfontein correspondents withdrew as attorneys of record on 6 March 2023. The notice of withdrawal was served on the applicants’ current attorneys who had been on brief in this matter since as long ago as January 2023. The applicants’ current attorneys came on record on 9 March 2023. Although aware of the pending application for leave to appeal, they did not appoint correspondent attorneys in Bloemfontein. Four months after the applicants’ current attorneys’ appointment and eight months after the application for leave to appeal was lodged, the first attempt to establish the status of the pending application for leave to appeal was made by the applicants’ current attorneys. An unexplained oddity in the papers is the fact that the cover page of the SCA order dated 26 May 2023 reflected the email- and physical addresses of the applicants’ current attorneys of record.

[18.2] The applicants were obliged but failed to lodge a notice of appeal before the expiry of the 20-day period from granting of leave to appeal. Leave to appeal was granted on 26 May 2023 but the order was issued on 5 June 2023. As such, the 20-day period expired on 5 July 2023.

[18.3] A notice of appeal was not filed by 5 July 2023.

[18.4] As such, the appeal lapsed. This is common cause between the parties.

[18.5] It is not correct that the applicants’ attorney had problems accessing the CaseLines file in this matter. The respondents’ attorneys granted them access.

[18.6] The respondents caused the warrant to be prepared on 6 July 2023, the day after the appeal lapsed. The warrant was issued by the Registrar on 31 July 2023. The funds in the bank account were eventually attached on 6 November 2023.

[18.7] Subsequently, on 17 August 2023, the applicants’ notice of appeal was filed. This was out of time. It was not accompanied by an application for condonation.

[18.8] The essence of all of the aforesaid is that, by the time that the respondents had the warrant issued, the applicants’ appeal had lapsed.

[18.9] The applicants have also failed to apply for condonation for the late filing of their notice of appeal and they have failed to file the appeal record and a request for a date for the hearing of the appeal or for an extension of the time within which they may do so. In addition, the applicants have failed to bring an application in terms of rule 49(6)(b) to reinstate the appeal that has lapsed.

[18.10] The appeal lapsed and it remains so.

[18.11] As such, the warrant and its consequent attachment are lawful and therefore not interdictable.

APPLICANTS’ SUBMISSIONS

[19] The issue for determination is whether the applicants are entitled to the relief prayed for in the notice of motion.

[20] The applicants submit that section 18 of the Superior Courts Act 10 of 2013 (the Act), inclusive of subsections (2) and (3), could have permitted a Court to order that the first and second respondents may execute on their warrant and attach the third applicants’ bank account under

exceptional circumstances. However, the only manner in which the respondents could have sought to execute on the Strydom judgment, would have been by means as set out in the Practice Manual in the chapter dealing with urgent applications in paragraph 27 on page 83 thereof. Accordingly, so the applicants submit, the only manner in which the first and second respondents could validly and lawfully have attached the third applicants’ funds in the bank account was by way of an urgent application in terms of section 18 of the Act and in accordance with the procedures prescribed by the Practice Manual. The applicants submit that the aforementioned procedures were not followed. The applicants submit that the respondents conducted themselves in an unlawful manner by executing against the third applicant’s bank account pending their appeal against the Strydom judgment. According to the applicants, this meant that the respondents took the law into their own hands and that they have acted in contempt of the SCA order allowing a full bench appeal against the Strydom judgment. According to the applicants, the only procedure available to the first and second respondents, in their efforts to attach the third applicant’s bank account, was for them to launch an urgent application in terms of section 18 of the Act. The applicants argue that the aforementioned procedure forms part of the Practice Manual which determines that the only manner in which a party to an appeal can seek an attachment is by way of an urgent application. It is the applicants’ case that this right as enshrined in the Act and the Practice Manual provides legitimate grounds for final interdictory relief and a declaration that the attachment of the third applicant’s funds in the bank account was unlawful.

[21] The applicants submit, correctly so, that since final relief is sought, they are required to show that the appropriation and infringement or threatened infringement by the respondents of the applicants’ alleged clear right to pursue their full bench appeal unhindered has been violated. The applicants submit that they have satisfactorily demonstrated that the warrant was issued and executed in contravention of the Act and the Practice Manual and therefore, that it was unlawful. It is contended by the applicants that they have adequately demonstrated that a clear right was established when the SCA granted

the applicants leave to prosecute their appeal before a full bench of this court. It is therefore submitted that the applicants have established a clear right.

[22] The applicants submit that, theoretically, the immediate execution of a court order whilst an appeal is pending and the outcome of the case may change as a result of the appeal, could have the potential to cause harm to the party that is ultimately successful. Section 18(4) of the Act provides a safeguard against irreparable prejudice being occasioned as a result of a court granting an execution order when it should not have done so. The applicants submit that the respondents have failed to follow the correct procedure by issuing and acting on the warrant whilst the appeal was pending. It is submitted that the applicants have demonstrated that without the grant of a court order, as required

under section 18 of the Act and the Practice Manual, the execution actually caused injury to the third applicant by way of depletion of her bank account in the amount of at least R1 002 691.01 which constitutes part if an inheritance from her late father.

[23] With regard to the interdictory requirement that there must be no other satisfactory remedy available, the applicants submit that the respondents failed to follow the correct procedure in that they have failed to seek an order by way of urgent application pursuant to section 18 of the Act and the Practice Manual and, therefore, the respondents had no right to execute on the warrant of attachment pending the final determination of the full bench appeal. Consequently there is no other satisfactory remedy available to the applicants but to have the status ante quo restored and the attached and transferred funds of the third applicant repatriated to her bank account. The applicants were therefore left with no alternative but to make application for suitable interdictory relief as they now did against the respondents.

[24] Consequently, so the applicants submit, an order in terms of the notice of motion should follow.

THE RESPONDENTS’ SUBMISSIONS

[25] On the respondents’ version the attachment of the bank account followed validly and lawfully pursuant to the Strydom judgment granted on 16 September 2022 and a cost order granted on 9 November 2022. The bill of costs was taxed, and a writ issued pursuant thereto.

[26] At the time when the warrant was issued and executed, the appeal had lapsed, and it has to date not been reinstated.

[27] Despite having been granted leave to appeal to the full bench of this division by the SCA on 25 May 2023 in terms of an order subsequently issued on 5 June 2023, it is common cause that the appeal had lapsed when the applicants failed to deliver a notice of appeal within twenty days as required by Uniform Rule 49(2).

[28] The applicants have failed to apply for condonation for the late filing of their notice of appeal. They also have failed to file the appeal record and a request for a date for the hearing of the appeal or for an extension of the time within which they may do so. The applicants have also failed to bring an application in terms of rule 49(6)(b) to reinstate the appeal that has lapsed.

[29] In the circumstances the respondents submit that they have a legitimate right to execute on the judgment and the order for costs respectively, and that they have done so.

[30] In reliance on Tiger Trading Company v Garment Workers Union and Others 1932 WLD 131 at 133, the respondents submit that the remedy of an interdict is a remedy for the prohibition of prima facie unlawful activity. As such a Court will be slow to grant an interdict restraining persons from exercising rights and carrying on legitimate activities as is the case in this matter on the respondents’ version. The respondents’ case is that they are accordingly entitled to execution in terms of the unassailed judgment and the costs order concerned.

[31] There is no appeal pending and that has been the case since the appeal lapsed on 5 July 2023.

[32] The respondents also submit that, in any event, none of the requirements for a final interdict is present.

[33] The requirements for a final interdict are proof on a balance of probability of:

[33.1] a clear right;

[33.2] an act of interference with the right; and

[33.3] the absence of any other suitable remedy.

[34] The respondents submit that in order to obtain the relief that they seek, the applicants had to provide evidence, first, to establish the existence of a clear right.[1] Reference to the common cause facts does not disclose the existence of such a right on the part of the applicants. It is common cause that the applicants’ anticipated appeal to the Full Bench has lapsed. As such, the first and second respondents in respect of the first writ were entitled to attach the third respondent’s property to give effect to their judgment. A proper analysis of the papers and the attachments reveals that the applicants’ suggestion that other judgment creditors attached the first applicant’s stock of Moreschi shoes in execution has to be rejected. That is simply not what happened. Third parties laid claim to it. The applicants refer to what they term the arbitrary depravation of their property. They have founded this submission on what they allege to be the absence of a lawful warrant. The respondents submit that, for the aforesaid reasons, the warrants (for the judgment debt and the taxed costs) in terms of which the funds in the bank account were attached were issued and executed lawfully. The respondents’ case is therefore that the warrants and their execution are lawful and cannot amount to the arbitrary depravation of property. The respondents submit that there is no merit in the applicants’ contention that notice of the attachment was not given to the judgment debtor. The papers and annexures in the application manifestly demonstrate that the attachment was executed properly in accordance with practice which included proper service on the applicants. In the circumstances the respondents submit that no right of the applicants has been violated by either the issuing of the warrants or the execution thereof.

[35] The respondents submit that the second requirement for an interdict namely that there has to be injury reasonably apprehended or

committed, is not satisfied either.[2] The respondents’ submissions in this regard are that firstly, it is not possible to make a case for the infringement of a right which has not been established and secondly, the applicants purport to suggest that the infringement is constituted by an inability on their part to transact as semi-retired persons. With regard to this element, the respondents submit that the applicants have not made out a case.

[36] With regard to the third interdictory element namely the absence of a suitable alternative remedy, the respondents submit the following. If it should emerge in due course that the appeal is revived and ultimately successful, then the applicants will have an alternative

remedy namely a claim for damages being reimbursement of the funds attached in and transferred from the bank account. Such a remedy will be adequate in the circumstances, be ordinary and reasonable and will grant sufficient protection if the applicants ever prosecute an appeal successfully to finality.[3] In this regard, the first respondent is a public listed company with more than adequate assets to discharge a claim for damages to reimburse the third applicant in due course if so required. The respondents submit that applicants ordinarily ought not to be granted an interdict, particularly not a final interdict, if they can obtain adequate redress through an award of damages.[4]

[37] As such, the respondents submit that no basis has been made out in the papers for the final interdictory relief sought and, therefore, the application ought to be dismissed with costs, such costs to include those attendant on the employment of senior counsel.

ANALYSIS

[38] The papers reveal a number of disputes, many of them directed at the urgency or otherwise of the application, the honesty or otherwise of the applicants, the applicants’ economical approach to the chronology of events, and what the respondents describe as an abuse of process by the applicants.

[39] None of this prevents this matter from being dealt with decisively and expeditiously.

[40] The crux of the matter lies in the answer to the question whether the issuing of the writ and the execution thereof prima facie was unlawful. If not, the first requirement for the granting of a final interdict namely a clear/definite right has not been proved on a balance of probability and the application cannot succeed.

[41] The chronology indicates that, at the time when the warrant was issued and subsequently executed, the appeal had lapsed. This is common cause between the parties. The subsequent late delivery of the notice of appeal did not elevate the appeal from its lapsed state.

[42] As such, the applicants’ reliance on section 18 of the Act and the relevant provisions of the Practice Manual is misplaced.

[43] Section 18 of the Act presupposes an extant appeal. An appeal that has lapsed is no longer an extant appeal. Therefore, the issuing of the warrant and the execution thereof was prima facie lawful.

[44] A court should be slow to interdict prima facie lawful activities[5]. This court intends to follow suit, fortified by the applicants’ failure to timeously file the appeal record and a request for a date for the hearing of the appeal or for an extension of the time within which they may do so, and their failure to bring an application for the reinstatement of the lapsed appeal. All things considered the appeal remains lapsed. It is a procedural nullity.

[45] Even if this approach is to be faulted, the following in any event applies. The applicants’ attempts to demonstrate compliance with the three requisites of final interdictory relief are in each instance devoid of logical reasoning. This court is in agreement with the submissions on behalf of the respondents to the effect that the applicants have failed to make out a case for any one of the requisites for a final interdict for the reasons submitted and summarised in paragraphs 34 to 36 supra.

[46] For these reasons the order as set out in paragraphs 1.1 and 1.2 supra follows.

_________________________

T VAN DER WALT

Acting Judge of the High Court

Johannesburg

This judgment was handed down electronically by circulation to the parties’ legal representatives by email and by being uploaded to CaseLines. The date of hand-down is deemed to be Wednesday 13 December 2023.

Application heard: Wednesday 29 November 2023.

Order without reasons handed down: Thursday 30 November 2023.

Judgment handed down electronically on Wednesday 13 December 2023.

Appearances:

For the applicants:

Adv A Allison

Instructed by:

Vardakos Attorneys

For First and Second Respondents: Adv I Miltz SC

Instructed by:

Hadar Incorporated

[1] Welkom Bottling Co (Proprietary) Limited v Belfast Mineral Waters (OFS) (Proprietary) Limited 1967 (3) SA 45 (O) at 56.

[2] Setlogelo v Setlogelo 1914 AD 221 and Free State Gold Areas Limited v Merriespruit (OFS) Gold Mining Co Limited 1961 (2) SA 505 (W) at 515 to 518.

[3] Free State Gold Areas Limited (supra) at 518; Martin v Kiesbeampte Newcastle Afdeling 1958 (2) SA 649 (D) at 654 and Cape Town Municipality v Abdullah 1974 (4) SA 428 (C) at 440.

[4] Fourie v Uys 1957 (2) SA 125 (C) at 128 and Candid Electronics (Proprietary) Limited v Buying Syndicate (Proprietary) Limited 1992 (2) SA 459 (C).

[5] Tiger Trading Company v Garment Workers Union and Others 1932 WLD 131 at 133.