MEC, Department of Public Works, Roads and Transport v Sheriff of the High Court, Molopo (1972/11) [2011] ZANWHC 75 (22 December 2011)

IN THE NORTH WEST HIGH COURT

(MAFIKENG)

CASE NO.: 1972/11

In the matter between:

MEC, DEPARTMENT OF PUBLIC WORKS, ROADS

AND TRANSPORT

…..................................................................APPLICANT

and

SHERIFF OF THE HIGH COURT MOLOPO ..............................RESPONDENT

DATE OF HEARING : 15 DECEMBER 2011

DATE OF JUDGMENT : 22 DECEMBER 2011

FOR THE APPLICANT : DR SENATLE

FOR THE RESPONDENT : MR MONARE

JUDGMENT

LANDMAN J:

Introduction

[1] An application and a counter application serve before me by way of urgency. On 26 November 2009 Kaulani Civils (Pty) Ltd obtained

judgment, in the Gauteng North High Court for an amount of R64 326 860.72 together with interests and costs, against

MEC Department of Transport. The Sheriff of the High Court: Molopo was entrusted with the execution of four writs issued by the

Registrar of that court.

[2] The Sheriff set about executing the writ. Eventually after some asset had been attached, the Department allegedly paid the judgment debt directly to Kualani Civils. The Sheriff submitted two accounts to the Department. After a bout of litigation the Department paid these accounts. About a year later, on 6 July 2011, the Sheriff submitted an account to the Department in connection with the recovery of the Kaulani judgment debt. This account was for commission in the amount of R5 739 417-46 being 9% of the payment of the judgment debt paid by the Department directly to Kaulani Civils. In his covering letter the Sheriff informed the Department that if the Department denied liability it should advise him of this within 90 days so that he could have he account taxed. The Department was also warned that if it failed to cause the account to be taxed within this period the account would no

longer be taxable but would be due and payable.

[3] On 1 August 2011 the State Attorney informed the Sheriff that it did not agree that he was entitled to the amount claimed and requested him serve us with your bill of costs, since we hold instructions to oppose the same. The Sheriff responded on 17 November pointing out that the 90 day period had expired. The Sheriff stated that the State Attorney had not requested him to tax the statement of account, only a bill of costs. He pointed out that he had attempted to remove goods which had been attached then and earlier but was prevented from doing so he advised that he would be removing the good in order to recover the amount owing.

[4] On 18 November Ms Hall, a tax consultant, instructed by the State Attorney, opined that a maximum of R5 875 could be claimed and demanded that the account be submitted to taxation.

[5] The Sheriff has filed an answering affidavit and a counter application. The Sheriff has provided a detailed account of his involvement in the execution of the writs. The Sheriff seeks the dismissal of the application with a special order as to costs. He also seeks the following order:

“(i) That the writ of execution issued by the registrar of the north Gauteng High Court, Pretoria on the 04th December 2009 under case no: 70680/09 mandate and or authorises the Respondent in the present application to recover the costs incurred by him in the execution amongst others, the Applicant in the present application.

(ii) The Statement of account for the sum of R5 739 417-46 acknowledged to have been received by the chief financial officer of the Applicant on the 11th July 2011 is due and payable and the Applicant can no longer request it to be taxed.

(iii) Costs of the application and counter-application be borne by the Applicant.”

[6] The MEC has filed a replying affidavit which, inter alia,:

(a) Disputes the jurisdiction of this court to entertain the counter claim;

(b) Disputes the right of the sheriff to execute the writ against it;

(c) Avers that it disputed the sheriff’s account (“bill”);

(d) Disputes the sheriff’s interpretation of Rule 68 of the Uniform Rules of Court; and

(e) Disputes the right of the sheriff to rely on the notices of attachment which he does.

Jurisdiction

[7] I am of the view that both the main application and the counter application raise issues which fall properly within the jurisdiction of the Gauteng North High Court. The writ is issued in respect of a judgment of that court. The ambit of the writ and the identification of the persons in respect of whom it may be executed, fall within the jurisdiction of that court. The taxing master of that court, and not a taxing master of another High Court, determines the adequacy of a sheriff’s account. This is so even if that Sheriff is the Sheriff of another court. See Cilliers et al Herbstein and Van Winsen - The Civil Practice of the High Courts of South Africa 5th edition 1082.

[8] To the extent that the parties rely on the order made by Gura J of this court, in the earlier dispute between the parties, the order was made by consent. It was based on a submission to jurisdiction. Even if I am wrong that this court does not have jurisdiction as far as the main application is concerned, the application and the counter application are so entangled that it would work an injustice if part of the disputes were to be determined by this court and part by the Gauteng North High Court.

[9] I do not wish to be understood as saying that there are no circumstances where this court will assume jurisdiction in a matter such as this one. Where the assets attached relate to public life saving equipment (as here) this court might be minded to interfere in the public interest.

Removal to Gauteng North High Court?

[10] In my view the application and counter application should be referred to the Gauteng North High Court in terms of section 3 of the Interim Rationalization of Jurisdiction of High Courts Act, 41 of 2001 (the Act). Section 3 of the Act reads as follows:

“(1) If any civil proceedings have been instituted in any High Court, and it appears to the Court concerned that such proceedings-

(a) should have been instituted in another High Court; or

(b) would be more conveniently or more appropriately heard or determined in another High Court,

the Court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other High Court.

(2) An order for removal under subsection (1) must be transmitted to the registrar of the High Court to which the removal is ordered, and upon receipt of such order that Court may hear and determine the proceedings in question.”

[11] The Act does not permit one High Court to order the removal of a matter to another High Court mero motu. One or more of the parties must apply for such an order. A substantive application is not required. See Majiedt J (as he then

was) in Premier: Northern Cape v Gaseemelwe and Others (1043/2007) [2007] ZANCHC 8 (14 December 2007) where he said:

“Section 3 of the Act, quoted above, envisages that the Court may order transfer on application by a party. There is no authority, nor has any been relied upon, for the proposition advanced by Mr Van Niekerk on behalf of the Respondents, that a substantive application is required in the circumstances. I do not, in any event, see the need for such an application in these circumstances. It is clear to all concerned that this Court does not have the necessary jurisdiction and that the matter should be transferred to the Bophuthatswana

General Division. A substantive application will not elucidate matters any further; on the contrary, such a course of action would

merely delay the matter unnecessarily. In the circumstances I am satisfied that the oral application brought by Mr Motloung is

sufficient.”

The order

[12] In the result I rule that this court does not have the necessary jurisdiction to entertain the main application and the counter

application. Should a party wish me to order the removal of these applications to the North Gauteng High Court, the applications should be enrolled for this purpose. Should there be no notification within 5 days that an application is to be made for the removal of the applications, an order will issue that: “The application and counter application is struck from the roll on account of a lack jurisdiction and no order is made as to costs”.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : STATE ATTORNEY

FOR THE RESPONDENT : SE MONARE & PARTNERS

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