Baba and Another v Malanot and Others (4628/2014) [2017] ZAFSHC 207 (9 November 2017)

Baba and Another v Malanot and Others (4628/2014) [2017] ZAFSHC 207 (9 November 2017)

The court found that the first respondent's conduct in attaching and selling the applicants' claim was an extreme measure not justified by the circumstances. There were less onerous means available to recover the costs order, such as attaching other assets or emoluments. The sale of the claim for R10.00 did not serve to reduce the debt but rather operated to deprive the applicants of their constitutional right to have their matter heard. The applicants did not fully understand the consequences of the process, and their attorney failed to act competently and timeously. The court held that the process invoked by the first respondent constituted an unjustifiable limitation of the applicants'...

Citation
[2017] ZAFSHC 207
Parties
Applicant: Eric Thozamile Baba; Applicant: Seeiso Joseph Sefatsa; Respondent: Justice Malanot; Respondent: The Editor, Volksblad Newspaper; Respondent: Media 24 Naspers; Respondent: On The Dot; Respondent: Paarlcollset; Respondent: Marlene Jordaan; Respondent: The Sheriff, Kroonstad
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 November 2017
Case Number
4628/2014
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution and Sale in Execution
Outcome
Application granted. Writ of execution and sale in execution set aside. Costs awarded against respondents and applicants' attorney ordered to pay wasted costs de bonis propriis.
Judges
NM MBHELE
Legal Topics
Writ of Execution, Sale in Execution, Abuse of Process, Section 34 Right of Access, Costs De Bonis Propriis
Civil Procedure Constitutional Law Writ of Execution Sale in Execution Abuse of Process Section 34 Right of Access Costs De Bonis Propriis

Case Brief

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Parties

Eric Thozamile Baba

Applicant

Seeiso Joseph Sefatsa

Applicant

Justice Malanot

Respondent

The Editor, Volksblad Newspaper

Respondent

Media 24 Naspers

Respondent

On The Dot

Respondent

Paarlcollset

Respondent

Marlene Jordaan

Respondent

The Sheriff, Kroonstad

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writ of Execution and Sale in Execution

Legal Issues

  1. 1 Whether the writ of execution and sale in execution of the applicants' claim were lawfully executed.
  2. 2 Whether the applicants' rights to access the courts under section 34 of the Constitution were unjustifiably limited.
  3. 3 Whether the conduct of the first respondent constituted an abuse of court process.

Ratio Decidendi

The court found that the first respondent's conduct in attaching and selling the applicants' claim was an extreme measure not justified by the circumstances. There were less onerous means available to recover the costs order, such as attaching other assets or emoluments. The sale of the claim for R10.00 did not serve to reduce the debt but rather operated to deprive the applicants of their constitutional right to have their matter heard. The applicants did not fully understand the consequences of the process, and their attorney failed to act competently and timeously. The court held that the process invoked by the first respondent constituted an unjustifiable limitation of the applicants'...

Court Disposition

Application granted. Writ of execution and sale in execution set aside. Costs awarded against respondents and applicants' attorney ordered to pay wasted costs de bonis propriis.

Orders

  • The writ of execution dated 18 August 2016, including notice of attachment and sale in execution on 3 November 2016 of applicants' rights, title and interests in the claim under case no 4628/2014, are set aside.
  • First to Sixth respondent to pay the costs of this application jointly and severally, the one paying absolving the others.