Minister of Agriculture, Land Reform and Rural Development and Another v D & M Mabunda Incorporated and Another (658/2021) [2023] ZAMPMBHC 14 (27 February 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA MPUMALANGA DIVISION

MBOMBELA (MAIN SEAT)

CASE NO. 658/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

27/02/2023

In the matter between:

MINISTER OF AGRICULTURE,

LAND REFORM AND RURAL DEVELOPMENT

First Applicant

MATHEBULA NGIRIVANE COMMUNITY

Second Applicant

and

D & M MABUNDA INCORPORATED

First Respondent

SHERIFF OF THE COURT: NELSPRUIT

Second Respondent

JUDGMENT

SIBUYI AJ

THE BACKGROUND FACTS

[1] The first and second applicants (‘the applicants’) launched this application seeking urgent relief to stay further execution of a writ of attachment dated 30 January 2023 (‘the writ”) pending the final determination of an application for rescission under case numbers 658/2021. They also seek an order releasing the applicant’s properties from the attachment. When the hearing commenced Mr Kok appeared on behalf of the first respondent and indicated to the court that he is appearing on a half brief, meaning that he was not prepared to argue the matter but to request the court to stand down the application to next week so that the senior counsel that was briefed to argue the application could appear and argue the application. I indicated to Mr Kok that this is an urgent court and that urgent matters cannot be stood down to the following week to accommodate unavailable counsel. Mr Kok then informed me that there is another counsel around court briefed to argue the application and that he was going to establish the whereabouts of the said counsel. I stood down the application to allow the new counsel to join the proceedings.

[2] When the application was recalled Mr Sithebe appeared as counsel on behalf of the first respondent. I granted the parties an opportunity to meet and consider settlement of issues in dispute. It took them about two hours. They came back and informed the court that they agreed on everything except the release of the attached properties. Seeing that there was no settlement I granted the parties an opportunity the argue the application. Mr Sithebe informed the court

that he was also not ready to argue the application and requested that the application stand down to the following week to allow a senior counsel to appear and argue the application. I refused the request. Mr Sithebe then informed me that he was not ready to argue the application and he withdrew as counsel and left the court. Mr Malowa argued the application and moved for the relief sought, as amended.

[3] I now deal with the background facts. On 13 September 2021 the first respondent obtained default judgement against the applicants in the following terms: 1) that the agreement between the second applicant and first respondent is legally valid and binding between the parties, and it is declared that the first applicant is not party to the agreement; 2) that the first applicant is directed to pay the first respondent the lesser of 25% of the settlement amount paid to the second applicant or the first respondent’s attorney and own client bill of costs so taxed at no more than double the attorney’s

fees, whichever is the lesser. The first respondent taxed its bill of costs and obtained the writ thereon. It used the writ to attach the Absa Bank investment account (‘the account”) belonging to the second applicant.

[4] The first applicant filed a rescission application against the above-mentioned order. The rescission application is opposed by the first respondent and is pending in this court. It is alleged that Mr Mabunda, acting on behalf of the first respondent as its director, agreed with the State Attorney that the first respondent will not proceed with the taxation of the bill of costs pending the finalisation of the rescission application. Unbeknown to the applicants and their legal representatives and contrary to the oral agreement with Mr mabunda, during December 2021 the first respondent proceeded and taxed the bill of costs and used it to obtain the writ to attach the bank account. The parties discussed the pending rescission application between the 27th and 30th of January 2023. However, unbeknown to the applicants and their legal representatives and while the parties were in the middle of negotiations on the way forward about the finalisation of the pending rescission application, the first respondent through its legal representative gave instruction to the second respondent to serve the writ on the first applicant on 1 February 2023. It is alleged that the first and second respondents attached the bank account without the knowledge of the applicants.

[5] As soon as the applicants became aware of the bank account attachment they launch this urgent proceedings on the basis that the respondents are executing on the second applicant’s property with full knowledge that the execution is not in line with the court order relied upon. The other ground for the application was that the execution was never saved on the second applicant.

[6] The second respondent, the sheriff of this court, issued a notice in terms of Rule 45(12) of the Uniform Rules of Court, seeking to attach the bank account wherein the execution creditor is described as the first respondent and the execution debtor is the first applicant. This notice was served on Absa Bank Limited on 2 February 2023.

ISSUES FOR DETERMINATION

[8] The following issues require determination:

(a) whether further execution of the writ of attachment should be stayed or otherwise suspended and the attached properties be released pending the final determination of an application for rescission under case numbers 658/2021, and

(b) Whether the application was sufficiently urgent to warrant the way it was launched.

THE WRIT

[7] I now turn to the merits and the law. A writ for the attachment of movable property belonging to the judgement debtor is issued in terms of Uniform Rule 45(1). The rule provides that a party in whose favour any judgement of the court has been pronounced may, at its own risk, sue out of the office of the registrar one or more writs against the movable property of the judgement debtor corresponding substantially with Form 18 of the First Schedule. Form 18 directs the Sheriff to ‘attach and take into execution the movable goods of the judgment debtor’ to be realised by public auction for the sum of the judgment debt. The writ was over-specific in terms of the movable property to be attached, directing the sheriff to attach only the bank account. As such it does not correspond substantially with Form 18 of the First Schedule to the Uniform Rules and contravenes Uniform Rule 45(1). The rule, in other words, does not serve as authority for the judgement creditor to choose to only attach a particular incorporeal right belonging to the judgement debtor, and to authorise the registrar to issue a writ that limits the authority of the sheriff to the attachment of specific movable incorporeal property.

[8 In addition, Uniform Rule 45 requires several consecutive steps for the valid attachment in execution of the movable property of a judgement debtor. The most important being:

(a) The issue of a valid writ of execution;

(b) A demand that the writ be satisfied;

(c) If not satisfied, a demand that the judgement debtor point out sufficient movable and disposable property, failing which the sheriff is authorised to search for such property;

(d) The making of an inventory of the goods;

(e) Subject to Uniform Rules 45(3) and (5), the sheriff shall take the movables into custody;

(f) The making of a return of the manner of execution;

(g) If the judgment debtor does not give an undertaking, and unless the execution creditor directs otherwise, the sheriff shall remove the goods to a convenient place of security or keep possession thereof on the premises where they were seized;

(h) Notice of sale to be forwarded at least 15 days before the date of sale; and

(i) The sale of the property attached at a sale in execution.

[8] The writ is the source of the sheriff’s authority for all actions taken pursuant to the writ[1]. The sheriff derives authority to act from the writ itself and enjoys no residual authority. The manner in which the writ was framed in this instance undoubtedly contributed to the sheriff failing to comply with the proper process during execution. As indicated, the sheriff in this case was directed to attach the bank account. There is no suggestion that the applicants, assuming they were all debtors, were afforded the opportunity, in terms of Uniform Rule 45(3), to point out sufficient movable property, other than the bank account, to satisfy the writ. A judgement debtor should not be deprived of this opportunity before the sheriff searches for property and proceeds to attach so much of the judgment debtor’s movables as is sufficient to satisfy the writ.

[8.1] Further, the writ is not valid or enforceable against the second applicant. There is no judgment directing the second applicant to pay money to the first respondent.

[9] Courts enjoy inherent discretion to set aside or order a stay of a sale in execution, at least prior to the completion of the execution procedure[2]. Courts enjoy constitutionally-supported inherent jurisdiction to control their own processes, taking into account the interests of justice. Courts will generally grant a stay of execution if the applicant demonstrates that real and substantial justice requires this or where an injustice will result if execution proceeds. Of course, the court’s discretion must be exercised judicially, but cannot otherwise be limited[3].

[10] The general principles for the granting of a stay in execution are as follows:

(a) The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice;

(b) The court must be satisfied that:

i. The applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent; and

ii. Irreparable harm will result if the execution is not stayed and the applicant ultimately succeeds in establishing a clear right.

(c) Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed because it is the subject-

matter of an ongoing dispute between the parties.

(d) The court is not concerned with the merits of the underlying dispute – the sole enquiry is simply whether the causa is in dispute.

[11] In the light of the above, the court is satisfied that there is causa in dispute, a well-grounded apprehension that the execution is taking place at the instance of the first respondent; and that irreparable harm will result if the execution is not stayed and the applicant ultimately succeeds in establishing a clear right. There is a possibility that the underlying causa may ultimately be removed because it is the subject-matter of an ongoing dispute between the

parties to be decided in the pending rescission application or subsequent appeals. Therefore, in the light of the above, it is in interest of justice that the application by the applicants must succeed.

[12] Though the applicants initially sought a final interdict, they sought an amendment for an interim interdict or stay pending rescission to be accommodated under the further and or alternative relief prayer. I granted the amendment.

THE COSTS

[13] The applicants asked for punitive costs against the first respondent. The applicants succeeded in this application. The ordinary rule is that costs follow the event. If an opposition or conduct of the other party is not frivolous or vexatious or in any other way manifestly inappropriate, as is the case here, punitive costs are not justified. The approach adopted by the first respondent in the execution of the writ, though incorrect, could be an excusable error. Therefore, a punitive costs order against the first respondent is not justified.

THE ORDER

[14] The following order is made:

1 The matter is heard as one of urgency in terms of Rule 6(12) of the uniform rules of this honourable court and condonation for non-compliance with the prescribed forms and time limits for service of the documents as provided for in the rules is hereby granted.

2 Pending the finalisation of the rescission application under the case numbers 658/2021, further execution of the writ of attachment dated 30 January 2023 is stayed.

3 The first and second respondents are hereby directed to release applicants’ properties attached for execution under the writ of attachment dated 30 January 2023.

4 The first respondent is to pay the costs of the application, such costs to include the costs of two counsel, where so employed

H W SIBUYI

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 27 February 2023 at 10:00.

HEARD ON: 21 February 2023

COUNSEL:

For the Applicants: Mr M. Malowa SC, with Mr. Mashimbye

For the Respondent: Mr Kok / Sithebe

[1] See Rule 5(3).

[2] See Whitfield v Van Aarde 1993 (1) SA 332 (E) at 337E-F.

[3] See Whitfield v Van Aarde op cit fn 90 at 337F-G