Shera Investments CC t/a Pie City and Another v Public Investment Commissioner and Another (89/2002) [2002] ZANWHC 9 (18 April 2002)

CASE NO. 89/2002

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

SHERA INVESTMENTS CC t/a PIE CITY 1ST APPLICANT

SEHER BANO PEER 2ND APPLICANT

and

THE PUBLIC INVESTMENT COMMISSIONERS 1ST RESPONDENT

THE SHERIFF, MORETELE 2ND RESPONDENT

_______________________________________________________________

JUDGMENT

MOGOENG J.

[1] The first Applicant is a closed corporation, a franchisee of Pie City, of which the second Applicant is the sole member. The first Respondent is a body which is duly vested with the authority and power to lease out business premises or office space at the Temba City Shopping Complex to any interested person. The first Respondent did lease out business premises at the abovementioned shopping complex to the Applicants. It follows that the Applicants were operating their pie business from this complex.

[2] During 2001 the first Respondent instituted an action for the ejectment of the Applicants in the Magistrate’s Court at Temba. Judgment was given in favour of the first Respondent on 09 January 2002. On the basis of this judgment, the first Respondent sued a warrant of ejectment out of the office of the Clerk of Court. It was duly handed over to the second Respondent for execution. [3] Armed with the aforementioned warrant of ejectment, the second Respondent went to the Applicants’ aforementioned business premises and removed the second Applicant and his employees. Thereafter, he locked the doors so as to deny the Applicants and their employees access to the premises. When the second Applicant and the employees were removed from the premises, the Applicants’ stock, equipment and other belongings were not removed. [4] About one or two hours after the abovementioned people had been removed from the building, the Applicants served a notice of appeal on the Respondents. When the first Respondent still refused to restore the status quo ante as the Applicants apparently expected them to do, upon being served with the notice of appeal, this application was then launched. [5] Two issues, which were raised by the Applicants, fall for determination in this application: 5.1 Did failure to remove the Applicants’ movable property result in an incomplete eviction which, it is common cause, would be tantamount to no eviction at all?

[2] During 2001 the first Respondent instituted an action for the ejectment of the Applicants in the Magistrate’s Court at Temba. Judgment was given in favour of the first Respondent on 09 January 2002. On the basis of this judgment, the first Respondent sued a warrant of ejectment out of the office of the Clerk of Court. It was duly handed over to the second Respondent for execution.

[3] Armed with the aforementioned warrant of ejectment, the second Respondent went to the Applicants’ aforementioned business premises and removed the second Applicant and his employees. Thereafter, he locked the doors so as to deny the Applicants and their employees access to the premises. When the second Applicant and the employees were removed from the premises, the Applicants’ stock, equipment and other belongings were not removed.

[4] About one or two hours after the abovementioned people had been removed from the building, the Applicants served a notice of appeal on the Respondents. When the first Respondent still refused to restore the status quo ante as the Applicants apparently expected them to do, upon being served with the notice of appeal, this application was then launched.

[5] Two issues, which were raised by the Applicants, fall for determination in this application:

5.1 Did failure to remove the Applicants’ movable property result in an incomplete eviction which, it is common cause, would be tantamount to no eviction at all?

5.2 If no eviction had taken place, then it would follow that the abovementioned notice of appeal had the effect of suspending the execution of the Court order and that the status quo ante would have to be restored. I address these issues below. [6] The form, nature and contents of the warrant of ejectment are set out as follows in “FORM 30" of the Rules of the Magistrate’s Court: “This is to authorise and require you to put the said plaintiff in possession of the said premises or land by removing therefrom the said defendant for which this shall be your warrant.” This is the form which any Warrant of Ejectment issued by any Clerk of Court must substantially comply with. Accordingly, when the first Respondent approached Magistrate’s Court, Moretele, for a Warrant of Ejectment to be sued out against the Applicants, it was issued in the following terms: “This is to authorise and require you to put the said Plaintiff in possession of the said premises or land by removing therefrom the said Defendant and all persons claiming occupation by or through or under him for which this shall be your warrant.”

5.2 If no eviction had taken place, then it would follow that the abovementioned notice of appeal had the effect of suspending the execution of the Court order and that the status quo ante would have to be restored.

I address these issues below.

[6] The form, nature and contents of the warrant of ejectment are set out as follows in “FORM 30" of the Rules of the Magistrate’s Court:

“This is to authorise and require you to put the said plaintiff in possession of the said premises or land by removing therefrom the said defendant for which this shall be your warrant.”

This is the form which any Warrant of Ejectment issued by any Clerk of Court must substantially comply with. Accordingly, when the first Respondent approached Magistrate’s Court, Moretele, for a Warrant of Ejectment to be sued out against the Applicants, it was issued in the following terms:

“This is to authorise and require you to put the said Plaintiff in possession of the said premises or land by removing therefrom the said Defendant and all persons claiming occupation by or through or under him for which this shall be your warrant.”

[7] This warrant of ejectment complies with the material terms of FORM 30 above. It also complies with the same FORM 30 that is reproduced in the SHERIFF’S HANDBOOK 1 for the guidance and benefit of the Sheriffs. The warrant of ejectment told the second Respondent exactly what was expected of him. All that the second Respondent was called upon to do in terms of the above warrant of ejectment was to remove the Applicants and their employees from the first Respondent’s premises. This he did. There is nothing in the warrant of ejectment enjoining him to remove the belongings of the Applicants as well. When the second Respondent took possession of the keys to the business premises and locked the doors, thereby denying the Applicants and their employees any further access to the premises, he had thereby completed their eviction and taken possession of the said premises on behalf of the first Respondent at whose instance he was acting.2 The eviction was complete. Whatever logistical problems and misunderstanding that may have arisen, relating to the belongings of the Applicants that remained in the premises, have no bearing on the completeness or validity of their ejectment. I am, therefore, satisfied that the eviction was completed, as per the warrant of ejectment, when the second Respondent locked the door(s) of the premises after having removed the Applicants and their employees therefrom. I deal next with the effect of the notice of appeal.

[8] It was the Applicants’ contention that their notice of appeal mentioned above should have had the effect of automatically suspending the operation or execution of the Court order. As a general principle, this is correct.3 However, I have already found, above, that the Court Order was executed when the second Respondent removed the Applicants and their employees from the first Respondent’s premises and locked them out. Accordingly, when the Applicants filed and served their notice of appeal one or two hours after their effective removal from the premises, there was nothing to suspend anymore. The order had been fully executed and could not at that late stage be suspended by the notice of appeal. The notice of appeal did not, therefore, have the effect of automatically suspending the operation of the Court order. I turn now to costs. [9] The second Respondent was nothing more than an agent of the first Respondent. If the first Respondent ordered him to release the goods of the Applicants he would, no doubt, have done so without hesitation. On the other hand, the Applicants never wrote a letter to any of the Respondents asking them to release their goods. In all the letters they wrote to the first Respondent, they sought to rely on the fact that their goods were not removed from the premises to strengthen their case that they had not yet been evicted and that since they had filed a notice of appeal, the operation of the Court order was thereby suspended and they should be allowed back into the premises.

[8] It was the Applicants’ contention that their notice of appeal mentioned above should have had the effect of automatically suspending the operation or execution of the Court order. As a general principle, this is correct.3 However, I have already found, above, that the Court Order was executed when the second Respondent removed the Applicants and their employees from the first Respondent’s premises and locked them out. Accordingly, when the Applicants filed and served their notice of appeal one or two hours after their effective removal from the premises, there was nothing to suspend anymore. The order had been fully executed and could not at that late stage be suspended by the notice of appeal. The notice of appeal did not, therefore, have the effect of automatically suspending the operation of the Court order. I turn now to costs.

[9] The second Respondent was nothing more than an agent of the first Respondent. If the first Respondent ordered him to release the goods of the Applicants he would, no doubt, have done so without hesitation. On the other hand, the Applicants never wrote a letter to any of the Respondents asking them to release their goods. In all the letters they wrote to the first Respondent, they sought to rely on the fact that their goods were not removed from the premises to strengthen their case that they had not yet been evicted and that since they had filed a notice of appeal, the operation of the Court order was thereby suspended and they should be allowed back into the premises.

[10] The first Respondent 4 at its own risk caused a notice of attachment in execution, filed of record as Annexure “D”, to be sued out of the office of the Clerk of Court. As a result, the Applicants’ movable property at the premises in question was attached. No order was made in favour of the first Respondent under case No. 1647/2001 5 which would have entitled the first Respondent to sue out such a notice. It is, therefore, clear to me that the first Respondent must have known firstly, that the Applicants’ movables were in its premises even after the removal of the Applicants and their employees, and secondly, that the reason why the Applicants’ movables were kept in those premises was its own notice of attachment in execution aforementioned. The Applicants must have known this reason as well. Notwithstanding this the Applicants never wrote a letter to the first Respondent alerting it to the irregularity of the attachment and demanding the release of their goods. It was only in the urgent application that all these things were complained about for the first time. When that was done, the first Respondent agreed that the goods be released. [11] In all likelihood the second Respondent would not have opposed this application had the Applicants not asked for an order for costs against him. The Applicants should have realised that the second Respondent was merely the first Respondent’s agent, acting both in terms of the notice of attachment in execution and a warrant of ejectment. The Applicants should have refrained from seeking a costs order against him. Accordingly, in respect of the second Respondent, I will order that the Applicants should pay the costs which were reserved on 05 March 2002, if any, and the costs of the 28 March 2002 application. As regards the Applicants and the first Respondent, they have both attained a measure of success on 05 March 2002 and on 28 March 2002. Accordingly I will order that each of these parties pay its own costs. In the result, I make the following order: a). The Respondents are finally directed to release all the movable property, belonging to the Applicants, to the Applicants; b). The other prayers are refused and the application in respect thereof is accordingly dismissed; c). The Applicants are to pay costs of this application to the second Respondent; and

[10] The first Respondent 4 at its own risk caused a notice of attachment in execution, filed of record as Annexure “D”, to be sued out of the office of the Clerk of Court. As a result, the Applicants’ movable property at the premises in question was attached. No order was made in favour of the first Respondent under case No. 1647/2001 5 which would have entitled the first Respondent to sue out such a notice. It is, therefore, clear to me that the first Respondent must have known firstly, that the Applicants’ movables were in its premises even after the removal of the Applicants and their employees, and secondly, that the reason why the Applicants’ movables were kept in those premises was its own notice of attachment in execution aforementioned. The Applicants must have known this reason as well. Notwithstanding this the Applicants never wrote a letter to the first Respondent alerting it to the irregularity of the attachment and demanding the release of their goods. It was only in the urgent application that all these things were complained about for the first time. When that was done, the first Respondent agreed that the goods be released.

[11] In all likelihood the second Respondent would not have opposed this application had the Applicants not asked for an order for costs against him. The Applicants should have realised that the second Respondent was merely the first Respondent’s agent, acting both in terms of the notice of attachment in execution and a warrant of ejectment. The Applicants should have refrained from seeking a costs order against him. Accordingly, in respect of the second Respondent, I will order that the Applicants should pay the costs which were reserved on 05 March 2002, if any, and the costs of the 28 March 2002 application. As regards the Applicants and the first Respondent, they have both attained a measure of success on 05 March 2002 and on 28 March 2002. Accordingly I will order that each of these parties pay its own costs.

In the result, I make the following order:

a). The Respondents are finally directed to release all the movable property, belonging to the Applicants, to the Applicants;

b). The other prayers are refused and the application in respect thereof is accordingly dismissed;

c). The Applicants are to pay costs of this application to the second Respondent; and

d). The Applicants and the first Respondent are each to pay their own costs. M.T.R. MOGOENG JUDGE OF THE HIGH COURT

d). The Applicants and the first Respondent are each to pay their own costs.

M.T.R. MOGOENG

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 28 MARCH 2002

DATE OF JUDGMENT : 18 APRIL 2002

COUNSEL FOR APPLICANTS : ADV G. BLOM

COUNSEL FOR 1ST RESPONDENT : ADV A. BESTER

COUNSEL FOR 2ND RESPONDENT : ADV N. GUTTA

ATTORNEYS FOR APPLICANT : HERMAN SCHOLTZ

ATTORNEYS FOR 1ST & 2ND RESPONDENTS : VAN ONSELEN & VAN ROOYEN